Gagandeep Chauhan vs Govt.Of Nct Of Delhi & Ors.
2011 Latest Caselaw 1191 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 1203/2011

                                                  Date: 28th February, 2011.

         GAGANDEEP CHAUHAN                                  ..... Petitioner
                    Through:              Mr. Aditya Sharma, Advocate.

                                      versus

    GOVT.OF NCT OF DELHI & ORS.              ..... Respondents
                 Through: Mr. Pankaj Batra, Advocate for R-1.
                           Mr. Atul Kumar, Advocate for R-2.
                           Mr. R.K. Vats, Advocate for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     No

2.       To be referred to the reporter or not?              No

3.       Whether the judgment should be reported             No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition seeks mandamus to the respondent no.2 CBSE and

respondent no.3 Manav Bharati India International School to allow the

petitioner to appear in the Board Examination for Academic Session 2010-

2011 to be conducted on 13th March, 2011 in the subject of Mathematics as

an additional sixth subject.

2. The petitioner in July, 2009 took admission to the respondent no.3

School in class XIth in Commerce Stream with the subjects of English

(Core), Economics, Information Practices, Business Studies and

Accountancy. The petitioner, in the school examination held in March,

2010 cleared class XIth with the aforesaid subjects and was promoted to

class XIIth. It is the case of the petitioner that, being desirous for opting

Mathematics as an additional subject and having qualified all internal

examination and Pre-Board examination conducted by the respondent no.3

School in the subject of Mathematics also, he on 16th November, 2010

deposited Board Examination fee of `150/- on account of „Additional

Subject‟ fee for Mathematics with the respondent no.3 School. It is further

the case of the petitioner that on 1st February, 2011 the Principal of the

respondent no.3 School addressed a letter to the respondent no.2 CBSE for

granting permission to the petitioner to appear in the examination for

Mathematics as sixth subject; in the said letter it was also stated that the

petitioner had qualified the internal examination in the subject of

Mathematics successfully. However, the petitioner was not issued the

Admit Card for the XIIth class Board Examination commencing from 1st

March, 2011, for the examination in the subject of Mathematics scheduled

on 13th March, 2011; thereafter, the present petition was filed.

3. The petition came up before this Court first on 23rd February, 2011

when the counsel for the respondent no.2 CBSE and the counsel for the

respondent no.3 School appeared on advance notice. It was the contention

of the counsel for the respondent no.2 CBSE on that day that the petitioner

having not studied the subject of Mathematics in class XI th, was under

Bye-Law 26 of the CBSE Examination Bye-Laws, 1995, not entitled to

appear in the examination therefor. The counsel for the petitioner had then

sought time to study the Bye-Laws.

4. The counsels have been heard finally on the writ petition today.

Considering the nature of the controversy and the urgency, the filing of

affidavits etc. has been done away with.

5. The contention of the counsel for the respondent no.2 CBSE is that

under Bye-Law 26 though with the heading "Rules for Change in Subject"

in Clause (iii) thereof it is provided that a candidate shall not offer a

subject in class Xth & XIIth which he has not studied and passed in class

IXth & XIth respectively. Attention is invited to the letter dated 1st

February, 2011 (supra) of the respondent no.3 School in which it is clearly

mentioned that the petitioner had not opted for Mathematics in class XIth

but had made his own arrangements to prepare for examination and qualify

for internal examination in the said subject. He has further handed over in

the Court the letter dated 26th July, 2010 of the respondent no.2 CBSE

laying down the schedule for the Senior School Certificate Examination

(Class XII), 2011 which prescribed the last date for submission of

examination form with fee as 15th September, 2010 and with late fee, latest

by 30th October, 2010. The counsel for the respondent no.2 CBSE has also

handed over in the Court the extracts of the list of candidates for the class

XIIth examination in 2011 submitted by the respondent no.3 School to the

respondent no.2 CBSE on 15th September, 2010 and in which, against the

name of the petitioner there is no mention of Mathematics and the fee

deposited by the petitioner also is for without Mathematics as an additional

subject. It is also pointed out that the signature of the petitioner also

appears on the said list. The counsel for the respondent no.2 CBSE has

further urged that as per petitioner‟s own averment, he deposited the

examination fee of `150/- for the additional subject of Mathematics with

the respondent no.3 School only on 16th November, 2010 i.e. after the last

prescribed date of 30th October, 2010. It is contended that thus the

petitioner cannot be said to have applied within time for appearing in the

examination for the subject of Mathematics and is not entitled to any relief

for this reason also.

6. Per contra, the counsel for the petitioner at the outset has relied upon

Kumari Jyoti Gupta v. Govt. of NCT of Delhi MANU/DE/3913/2010 but

has not been able to show the relevance thereof to the present controversy.

He has next relied upon Kusum Lata v. State of Haryana

MANU/0627/2002 observing that the scheme of CBSE requires the

candidate to qualify 10+2 examination in five subjects and not six and the

sixth subject is treated as additional and optional and it is up to a candidate

to take or not to take the sixth subject. It was further held that when

eligibility clause stipulates that a candidate should have passed 10+2

examination with at least 50% aggregate marks, it is implicit that the

aggregate marks are required to be calculated keeping in view only the

subjects which are necessary to pass 10+2 examination and not the marks

of additional subject which is not taken into account for passing the

examination.

7. On the basis of the aforesaid judgment, the counsel for the petitioner

has argued that he desires to appear in the examination for the subject of

Mathematics as an additional subject without the marks of the said

additional subject being included in the result to be declared by the

respondent no.2 CBSE of the five subjects which he has studied in class

XIth and class XIIth. On enquiry as to why he so desires to appear in the

examination in the subject of Mathematics when he would not be entitled

to compute marks thereof in the result of class XIIth, he states that further

admissions beyond the 10+2 stage in several courses are dependent upon

having studied and passed Mathematics as a subject in class XII th and

without his appearing in Mathematics he would be disentitled from

applying for admission to the said courses.

8. The counsel for the petitioner otherwise agrees that the Supreme

Court in Kusum Lata (supra) was not concerned with the controversy as in

the present case.

9. The respondent no.3 School in its communication dated 1st February,

2011 (supra) had requested the respondent no.2 CBSE to grant permission

to the petitioner to appear in Mathematics as an additional subject "in

accordance with the subsequent provision made for this purpose by

CBSE". It has as such been enquired from the counsel for the respondent

no.3 School as to which was the subsequent provision made by the

respondent no.2 CBSE in accordance wherewith the case of the petitioner

was canvassed.

10. The counsel for the respondent no.3 School has invited attention to

the Senior School Curriculum 2011 of the respondent no.2 CBSE, Clause

1.21 under Chapter 1 titled "Eligibility of Candidates" whereof prescribes

the rules for change of subject. He has also invited attention to Clause 3.1

qua Additional Subject under Chapter 3 titled "Scheme of Studies". It is

contended that though while providing for change in subject it is provided

that the candidate shall not offer a subject in class XIIth which he has not

studied and passed in class XIth, there is no such prohibition in the Clause

with respect to the additional subject.

11. It has been enquired from the counsel for the respondent no.3 School

as to what could be the reason or logic for not permitting change in subject

where the candidate has not studied or passed the same in class XIth. The

counsel is unable to answer. In my opinion the only logic or reason

therefor can be that a student is not entitled to, while appearing as a

Regular Candidate in class XIIth, change to a subject which he has not

studied in class XIth. The importance is given not only to passing the

examination but to also study of the subject. The respondent no.3 School

does not appear to have guided its students correctly. If the respondent

no.3 had any doubt whatsoever as to the meaning of any Clause in the

Curriculum aforesaid, the respondent no.3 School before guiding its

students ought to have sought a clarification from the respondent no.2

CBSE and which does not appear to have been done.

12. The counsel for the petitioner has also argued that another candidate

was permitted in the previous year to appear in an additional subject.

However there is nothing to show that the said candidate had not studied

and not passed the said additional subject in class XIth. No credence

whatsoever can thus be given to the said argument.

13. The counsel for the respondent no.2 CBSE has in response to the

desire of the petitioner to appear in examination in subject of Mathematics

without consideration of marks secured in the said subject for computation

of result contended that the petitioner as a regular student is not entitled to

appear in any additional subject marks whereof would not be computed in

the result to be declared by the respondent no.2 CBSE. It is urged that

though a candidate is entitled to take an additional subject but is required

to also study it in class XIth and pass the exam thereof and to continue

studying it in class XIIth and thereafter besides the compulsory subject of

language, the four best marks out of the remaining subjects including the

additional subject are taken into consideration for computing the result to

be declared. Attention is invited to the extract of the list aforesaid handed

over in the Court where the candidate entered immediately after the

petitioner namely Garima Popli had filled up the examination form for six

instead of five subjects and paid examination fee accordingly. It is

contended that the petitioner within the prescribed time did not fill up the

form or pay the fee for any additional subject which he in any case was not

entitled to. It is further informed that under Bye-Law 43, the petitioner will

be entitled to appear in the additional subject of Mathematics as a Private

Candidate after one year of appearing as a regular student and within six

years thereof. Attention is further invited to Bye-Law 16 where a "Private

Candidate" is defined as a person "who is not a Regular Candidate". On

the basis thereof it is contended that the petitioner in the ensuing

examinations of the year 2011 cannot appear as a Regular Candidate for

the five subjects for which he has filled up the form and as a Private

Candidate for the additional subject of Mathematics as sought by him. It is

further informed that when a candidate so appears as a Private Candidate

for an additional subject, marks whereof are not taken into consideration

for the result of class XIIth and the same is allowed only to enable a student

to gain admission for courses requiring the study and clearance of

Mathematics as a subject in the Senior School Secondary Examination.

14. Though in view of the categorical position in the Examination Bye-

Laws aforesaid and also for the reason of delay by the petitioner in

applying for appearing in examination in the subject of Mathematics, the

petitioner cannot be granted the relief, however during the hearing it has

been felt that when the respondent no.2 CBSE is permitting a student to,

without studying a subject in class XIth take examination thereof as a

Private Candidate in the year following the student passing out as a

Regular Candidate, to enable such students to seek admission in courses

requiring passing of Mathematics as a subject in class XII th, why the same

facility is declined to a student appearing as a Regular Candidate. The

counsel for the petitioner has contended that the petitioner could not have

taken commerce with both Information Practices as well as Mathematics

but will suffer in his further academic career if does not clear the

examination in both subjects. Prima facie it appears that there is no reason

whatsoever to disallow a student to so appear as a Private Candidate in an

additional subject while appearing as a Regular Candidate, specially when

he/she is permitted to so appear, in the following year. There appears to be

no reason for making a candidate lose a precious year of the academic life.

The counsel for the petitioner states that the petitioner is willing to file an

undertaking that if allowed to appear in Mathematics as a Private

Candidate, he will not insist upon the consideration of the marks in

Mathematics for the purpose of computation of the result. The counsel for

the respondent no.2 CBSE states that computer system will not accept such

a situation and in any case the rules prohibit a student from appearing both

as a Regular and a Private Candidate at the same time. However, neither

the Bye-Laws have been challenged in this writ petition nor is this Bench

as per roster entitled to entertain the said challenge. The counsel for the

petitioner seeks liberty to file afresh challenging the said Bye-Laws. Thus

while dismissing the petition, opportunity is granted to file afresh on the

same cause of action impugning the Bye Laws.

15. No order as to costs.

Dasti under the signatures of court master.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 28th, 2011 pp..