Ankur Sen vs Cbse
2011 Latest Caselaw 5030 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                      Judgment reserved on: 01.09.2011
                      Judgment delivered on: 13.10.2011



           W.P.(C) 4820/2011 & CM No.9789/2011

ANKUR SEN                               ......Petitioner
                Through: Mr.S.C. Vats, Adv.

                           Vs.

C.B.S.E.                                 ......Respondent
                Through: Mr. Atul Kumar, Adv.


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.

*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks directions to direct

the respondent CBSE to allow him to appear in the

compartmental examination in Mathematics (additional

subject) which was scheduled for 16.7.2011.

2. Facts, succinctly stated, are that the petitioner

appeared in CBSE Class XII Examination held in the month of

March 2011 and was declared „Pass‟ but failed in 6th

(additional) subject, i.e. Mathematics. It is the case of the

petitioner that he had appeared in various entrance

examinations, such as National Aptitude Test for Architecture,

AIEEE (Architecture) and for other private colleges where he

had secured good rank and if he is not allowed to appear in

the compartmental examination in his 6th (additional) subject

of mathematics in this year itself, then he would lose a chance

to get admission in many prestigious courses. It is also the

case of the petitioner that he was permitted to appear in the

said compartmental examination by his School and, in fact,

the petitioner had filled the necessary examination form after

depositing the fee of Rs.150/-, which Form was duly

forwarded by the School to the CBSE and the same was

received by the CBSE with its official seal affixed on the said

form. After the submission of the said Form, the petitioner

did not receive any response from the CBSE due to which the

petitioner was apprehensive that he will not be permitted to

appear in the compartmental examination in the same year

because of misinterpretation of the relevant bye-laws of the

CBSE. It is also the case of the petitioner that as per the rule

mentioned in the footnote of the form, the petitioner is clearly

eligible to appear in the compartmental examination as the

said rule clearly permits a student who had appeared in all

the six subjects but failed in one of the six subjects to be

entitled to appear in the said compartmental examination.

Also, a notice dated 1.7.2011 was sent by the petitioner to

raise his grievance for inaction on the part of the respondent

CBSE on his application for letting him appear in the

compartmental examination and as he did not receive any

response , ultimately he had to file the present writ petition.

3. In the counter affidavit filed by the respondent CBSE,

the stand taken is that the petitioner is ineligible to take the

said compartmental examination in the same year in terms of

relevant bye-laws of respondent CBSE. As per the

examination bye-laws framed by the CBSE, a candidate is

eligible for taking the Senior Secondary School Certificate

Examination, he has to undergo a regular course of study in

one language and four elective subjects and besides these five

main/elective subjects, the candidate may opt for an

additional subject which can either be a language at elective

level or another elective subject, as prescribed in the scheme

of studies. It has been further explained by the respondent

that in order to declare a student having passed the

examination, he has to obtain a grade higher than the E(i.e. at

least 33% marks)) in all the five subjects of external

examination in the main or at the compartmental

examination. Likewise, in case of a subject involving practical

work, a candidate must obtain 33% marks in theory and 33%

marks in practical separately, in addition to 33% marks in

aggregate in order to qualify in that subject. So far as norms

applicable to an additional subject are concerned, learned

counsel for the CBSE has placed reliance on Rules 40.1 (iv)

and (v) which are reproduced below:-

"40.1(iv) In respect of a candidate offering an additional subject, the following norms shall be applied:

(a) A language offered as an additional subject may replace a language in the event of a candidate failing in the same provided after replacement the candidate has English/Hindi as one of the languages.

(b) An elective subject offered as an additional subject may replace one of the elective subjects offered by the candidate. It may also replace a language provided after replacement the candidate has English/Hindi as one of the languages.

(c) Additional language offered at elective level may replace an elective subject provided after replacement, the number of languages offered shall not exceed two.

(v) Candidates exempted from one or more subjects of internal examination shall be eligible for appearing in external examination and result shall be declared subject to fulfillment of other conditions laid down in the Pass Criteria.

Learned counsel for the respondent also referred to Rule 40.2

which deals with eligibility of a candidate for appearing in

compartmental examination in the senior secondary, besides

referring to Rule 43(ii), which are reproduced as under:-

40.2 Eligibility for Compartment in Senior School Certificate Examination A candidate failing in one of the five subjects of external examination shall be placed in compartment in that subject provided he/she qualifies in all the subjects of internal assessment.

...

Rule 43(ii) of the Examination Bye-laws given in Notification No.CE/COORD/DS-P/SO-K/F-8/2006 dated 29.9.2006 relating to Additional Subject(s) may be read along with Rule 40.1(iv). It means that a candidate who has offered and appeared in six subjects and in order to make him/her eligible for passing the examination, one of the main subject(out of first five mentioned in the List of Candidates/Application Form) has

been replaced with the Additional Subject (Column 6 of the List of Candidates/Application form), such a candidate is eligible to appear in the failing subject at the compartment examination to be held in July/August in the same year.

Based on the above said Rules, the respondent took a stand

that the petitioner had appeared in five main/elective subjects

being English Core (301), Economics (030), Psychology (037),

Physics (042) and Chemistry (043) and one additional subject,

being Mathematics (041). The petitioner had passed in the

five main/elective subjects but had failed in the additional

subject being mathematics and the stand taken by the

respondent was that the petitioner was not at all entitled to

appear in the said additional subject in the compartmental

examination in the same year and had the petitioner failed in

any of the five main/elective subjects, and the additional

subject replacing the failed elective subject, then in such a

scenario the petitioner could have appeared in the failed

elective subject in the compartmental examination in the

same year. It is also the case of the respondent CBSE that the

respondent did not issue any Admit Card in favour of the

petitioner, although the form of the petitioner was duly

forwarded by the School to appear in the compartmental

examination of the said additional subject.

4. Mr. S.C. Vats, learned counsel appearing for the

petitioner, with all vehemence, contended that the petitioner

is certainly entitled to appear in the said compartmental

examination in the additional subject of Mathematics in the

same year. Learned counsel also strongly placed reliance on

the rule printed as the footnote in the said Examination Form,

which Form was duly received by the CBSE after the same

was forwarded by the School of the petitioner. The said rule,

on which reliance was placed by learned counsel for the

petitioner, is reproduced below:-

1. Additional failed subject - Applicable - only to those who appeared at the March, 2011 examination in 6 subjects and whose result declared pass but failed in one of the six subjects.

Based on the above rule appearing as the footnote, learned

counsel submitted that this rule clearly permits the petitioner

to appear in the compartmental examination of Mathematics

as the petitioner had appeared in all the six subjects but had

failed in one of the six subjects. The contention raised by the

counsel was that one of the failed six subjects could either be

out of the five main/elective subjects or additional subject.

Learned counsel also submitted that the stand taken by the

respondent CBSE is totally irrational, because as per CBSE, if

a student fails in an elective subject or any language subject,

which can be replaced by an additional subject, then only he

would be entitled to appear in the compartmental

examination in the same year, which interpretation would

lead to wasting of one precious year of the student. Learned

counsel also submitted that this Court must adopt a holistic

approach to give a proper and purposeful import to the CBSE

bye-laws on which reliance was placed by learned counsel for

the respondent. Learned counsel also submitted that there is

a gross negligence on the part of the respondent in not timely

responding to the request of the petitioner and his parents

kept on knocking at their doors for obtaining the Admit Card

and the respondent did not respond even despite service of a

legal notice. Learned counsel also submitted that pursuant to

the directions given by this Court, the petitioner had already

appeared in the said compartmental examination and now the

respondent has to merely declare the result of the petitioner

in the said subject and if the petitioner is declared pass in the

said compartmental examination, then a precious year of the

petitioner would not go waste, just on the wrong reading of

the relevant bye-laws of the CBSE.

5. Learned counsel for the respondent, on the other

hand, strongly opposed the present petition and submitted

that the said admission form of the petitioner was not

accepted by the CBSE and vide letter dated 6.7.2011, the

CBSE had duly informed the petitioner as well as the School

of the petitioner that he was ineligible to appear in the

compartmental examination in the same year in terms of the

bye-laws of the respondent Board. Learned counsel thus

contended that after being informed about his ineligibility to

appear in the said compartmental examination, the petitioner

cannot complain that the respondent had slept over the

matter or there was any kind of inaction on their part.

Learned counsel also contended that the misprint of rule at

the footnote of the Examination Form would not make the

petitioner entitled to appear in the said compartmental

examination. Counsel further submitted that for determining

the eligibility of a candidate to appear in the compartmental

examination, the relevant bye-laws will only hold the field and

on a plain reading of these byelaws, it would be evident that

the petitioner is totally ineligible to appear in the

compartmental examination in the said additional subject of

Mathematics in the same year.

6. I have heard learned counsel for the parties at

considerable length and gone through the records.

7. The petitioner had chosen to appear in his Senior

School Certificate Examination in the four elective subjects of

Economics, Psychology, Physics, Chemistry and one language

of English Core subject. It is not in dispute between the

parties that the petitioner had secured more than 33% marks

in each of the above subjects and also in aggregate and was

thus declared "pass" in the 12th class examination by the

CBSE and was also issued a marksheet to this effect. By

exercising the choice to opt for an additional subject in class

12th , the petitioner chose the subject of Mathematics. It is

also not in dispute between the parties that the petitioner

failed in the said additional subject of Mathematics. The

controversy involved in the present case is that the petitioner

claims that he has the right to appear in the said additional

subject of Mathematics in which he had failed alongwith the

compartmental candidates whereas the respondent has taken

a stand that he cannot be allowed to appear in the said

examination as per the relevant rules and bye laws.

8. It is not in dispute between the parties that the

petitioner had applied to appear in the said compartmental

examination after depositing the requisite fee of Rs.150/- and

filling in the required form but yet the petitioner got no

intimation from the CBSE regarding his roll number to appear

in the said exam. The petitioner has claimed his right to

appear in the said exam on the basis of the rule appearing as

the footnote in the said form, which is reproduced herein

above, which entitles him to appear in the failed additional

subject. However, after the service of the legal notice, the

respondent intimated the petitioner on 6.7.2011 and also by

reply to the legal notice dated 9.7.2011 that he is not eligible

to appear in the said examination, and thus the contention of

the counsel for the petitioner that the petitioner has not been

timely informed does not hold good.

9. Be that as it may, the eligibility or ineligibility of

the petitioner to appear in the compartmental examination

held on 16.7.2011 in the additional subject of Mathematics

can be decided only by the relevant bye laws framed by the

CBSE. On a bare reading of Byelaw 40.1(iv) dealing with the

norms concerning the additional subject, the following is

discernable:

a. if out of the five subjects chosen, one is a language and

the student has failed in the said language subject and has

also at the same time opted the additional subject as a

language in which he has passed, then the additional subject

would replace the main subject of language for calculating the

pass grade/percentage.

b. similarly, if a candidate fails in an elective subject out of

the five main subjects, and has chosen an elective subject as

an additional subject in which he has passed, then the said

additional subject would replace the main elective subject

c. also, as per the third condition, an additional

language may also replace an elective subject if after

replacement, the number of languages are not more than two

in totality.The abovesaid rule is applicable to the candidates

who have opted for an additional subject and have passed in

the same to calculate the pass percentage or grade in the

event a candidate fails in one of the five main subjects opted

by him. The bye law 40.2 which deals with the compartment

examination makes it clear by its simple language that a

candidate is entitled to appear in the compartment

examination only when he has failed in any of the five main

subjects chosen by him. For the smooth implementation of

the abovesaid rule, bye law 43 was amended on 6.2.2006

which entitles a candidate having passed by virtue of rule

40.1(iv) to appear in the failing subject in the compartment

examination of the same year. The effect of this amendment is

that if a student failed in any of the five main subjects opted

by him and the subject was replaced by an additional subject

as explained herein above, then he would be allowed to

appear in the compartment examination of that failing main

subject in the same year. This also satisfies the bye law 40.2

of the compartment rules which stipulates that the candidate

is allowed to appear in the compartment examination if he has

failed in any one of the five main subjects. These five main

subjects are the ones which are the first five subjects in the

application form of a candidate. The opting of additional

subject is optional and not mandatory and is done like a safety

net by the students in the event of their failing in any one of

the main five subjects as it helps them for issuing them a pass

marksheet by the replacement rule 40.1(iv). The additional

subject concept is also to make available a wider choice to the

candidate to apply for courses and appear in entrance

examinations and the additional subject result is immaterial in

calculating the overall grade or while applying to any course

of study. Thus even if a candidate fails in the additional

subject, his result remains unaffected as it is based on the

marks secured by him in the five main subjects.

10. Now adverting back to the facts of the case at

hand, the petitioner failed in the additional subject of

mathematics and not in any of the five main subjects. The rule

of 40.1(iv) is not applicable to the case of the petitioner as

he did not fail in any of the main five subjects. The

compartment rule also debars the petitioner from appearing

in the said compartment exam in the same year as the

condition stipulated therein is that the candidate should fail in

any of the five main subjects to be able to appear in the

compartmental examination that year itself. Now the

amended bye law 43 as well, which gives the benefit to a

candidate to appear in the compartment exam the same year

is only when the candidate has taken the benefit of rule

40.1(iv), which is the replacement rule. Hence, it would be

quite manifest that the petitioner who had failed in the

additional subject of Mathematics and not in any of the five

main subjects, is not entitled to appear in the compartmental

examination in the same year as rule 43 would also not be

applicable in his case.

11. The entire scheme envisaged in the said bye laws

manifestly is that once a student opts for an additional subject

and fails in one of the five main subjects, then he is not

declared failed so that a precious academic year of the

student does not go waste and he can apply to seek admission

for advancement of his career based on the „pass‟ Mark Sheet

issued by the CBSE giving him benefit of passing in the

additional subject. However, in the case of a student who

passes in the five main subjects but fails in the additional

subject, as in the case of the petitioner, none of the above

rules and bye laws are applicable. His situation is totally

converse to what has been contemplated by the said rules and

in that event he is only entitled to appear in the

compartmental exam of the failing additional subject in the

next year.

12. The petitioner also cannot take any advantage of a

rule printed as the footnote in the Examination Form although

the School should have been careful enough to not print it

with any such incorrect rule of CBSE. But, in any event of the

matter, this Court cannot give any decision in favour of the

petitioner based on such footnote which does not find support

from the byelaws of the respondent CBSE.

13. Vide order dated 13.7.2011, the petitioner was

permitted to appear in his compartmental examination in the

additional subject of Mathematics to be held on 16.7.2011 but

at the time of directing interim protection this Court made it

explicitly clear that the said interim relief will not create

special equity in his favour and his appearance in the said

compartmental examination will be subject to the final

outcome of the present petition. Indisputably, in such like

matters of grave urgency, the Courts grant such interim

reliefs so as to save the interest of a student approaching this

Court who may ultimately be successful in his case. At the

same time, in the event of dismissal of a case, there is bound

to be an agonizing effect on the mind of a student as by the

stage of passing of a final order, not only the student had

appeared in the examination due to interim order but

thereafter also further pursues his academic career based on

that interim order. But this is a risk for the petitioner as he is

forewarned at the stage of giving the interim relief only that

grant of interim relief will not create any special equity in

favour of such a student. It is a settled legal position echoed

from the portals of the Apex Court and of the High Courts that

the courts cannot decide academic matters to protect the

interest of the students based on misplaced sympathy. The

fact of petitioner having taken the said exam already will not

sway this court to allow his case on merits. The rules and bye

laws when analyzed in totality do not lean to augment the

case of the petitioner and rather are not applicable to him at

all and the others who were similarly placed cannot be

discriminated vis a vis petitioner for the sole reason that he

approached the court. This court is not inclined to show any

indulgence to the petitioner on the ground that his academic

career is dependent on the result of the said examination as it

would lead to setting a malefic precedent.

14. In the light of the above discussion, this Court does

not find any merit in the present petition and the same is

hereby dismissed. The petitioner will not be entitled to any

special advantage of interim relief granted by this Court and,

therefore, the result of the petitioner will be only as per the

Mark Sheet issued by the respondent and he will be entitled

to appear only next year along with the other students in his

additional subject of Mathematics, if he chooses so.

October 13, 2011                   KAILASH GAMBHIR, J