Independent Schools??? ... vs Central Board Of Secondary ...
2011 Latest Caselaw 4243 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment reserved on: 11th August, 2011

%                              Judgment pronounced on: 1st September, 2011


+     LPA No.563/2011

      Independent Schools‟ Federation of India (Regd.) ..... Appellant
                             Through: Ms.Shobha, Adv.

                            Versus

      Central Board of Secondary Education & Anr.    ..... Respondents

Through: Mr.Amit Bansal, Adv. for Resp.1 Mr.B.V. Niren, CGSC for Resp.2

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

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

DIPAK MISRA, CJ

The appellant, Independent Schools‟ Federation of India (for short

„the Federation‟), claiming to be espousing the cause of the interest of the

schools which are affiliated to the Central Board of Secondary Education

(CBSE) invoked the jurisdiction of this Court under Article 226 of the

Constitution of India and prayed for declaring the Circular No. 39 dated

LPA No.563/2011 page 1 of 19 20th September, 2009 and Circular No. 40 dated 29th September, 2009 issued

by the CBSE as unconstitutional and further issue of a writ of certiorari for

quashment of the same.

2. It was averred in the writ petition that the CBSE issued the circular

dated 20th September, 2009 for introducing the examination reforms and

Continuous and Comprehensive Evaluation (CCE) and directed that the

senior secondary schools need not undertake the board examination for

the 10th class, whereas the schools upto high-school standards shall take up

the board examination for the 10th class. Thus, the board examination for

class 10th was withdrawn by the CBSE a month prior to the date of

examination. The board advised all other schools to award grades to the

students of 10th class as per the CCE scheme. On 29th September, 2009, the

CBSE issued a circular introducing grading system at the secondary level

for class 9th and 10th effective from the academic year 2009-2010. The

purpose of issue of the circular, as claimed by the CBSE, was is to reduce

the stress on the students and help in making holistic assessment of the

students, to minimize the misclassification of the students on the basis of

marks and to eliminate unhealthy cut-throat competition among the high

achievers.

LPA No.563/2011 page 2 of 19

3. The Federation assailed the circular dated 20th September, 2009 in

WP (C) No. 2226/2010 which was disposed of on 7th April, 2010 granting

liberty to the Federation to make a representation to the competent

authority. The circular dated 29th September, 2009 came to be challenged

in WP (C) No. 3433/2010 and this Court vide order dated 19th May, 2010

asked the Federation to submit a representation to the CBSE with a further

command that the CBSE shall dispose of the same by a speaking order

after affording opportunity to the representatives of the Federation. As set

forth, the CBSE rejected the representation on 12th August, 2010 stating

therein that the abolition of board examinations could reduce the stress

and anxiety of the students and minimise the classification and could help

in holistic assessment of the children. The CBSE has issued circulars

requiring the schools affiliated to it to follow the Continuous and

Comprehensive Evaluation Scheme for assessments. It has laid down the

procedure for the same.

4. After the rejection of the representation, the Federation impugned

the circulars, which have been mentioned hereinbefore as there had been

no adjudication whether the introduction of grading system for class 9 th

and 10th and abolition of examination in 10th standard is justified in the

LPA No.563/2011 page 3 of 19 backdrop of national curriculum framework and sustainable on the anvil

of reasonableness.

5. The learned Single Judge expressed the view that an expert body

like CBSE has taken the decision by consulting all stakeholders and such a

policy decision could not be interfered with on the ground that a better,

fairer or wider alternative policy is available.

6. Calling in question the legal pregnability of the order, Ms.Shobha,

learned counsel for the appellant has contended that the learned Single

Judge has fallen into error by expressing the view that the court should not

interfere with the opinion of the experts, particularly the academic bodies,

inasmuch as when an expert body acts in a total irrational manner and

defeat the purpose of education, the court can strike down the whole

action exercise in exercise of power of judicial review. It is her further

submission that the circular by virtue of which grading system has been

introduced though on the guise of examination reforms, the same in

actuality is detrimental to the interest of the students and further after the

action of the CBSE is appreciated with nuanced scrutiny it will clearly

LPA No.563/2011 page 4 of 19 reveal the unreasonableness and arbitrariness inviting the frown of Article

14 of the Constitution of India.

7. Learned counsel for the respondent submitted that the order passed

by the learned Single Judge is absolutely defensible as the CBSE has

undertaken the exercise after consulting the expert bodies and the

stakeholders and, therefore, the writ Court in exercise of power of judicial

review has appositely not dislodged the said decision. Learned counsel for

the respondents would further contend that the fundamental reason

inherent in the policy is to reduce the load on the students and to make a

CCE system and regard being had to the laudable purpose if deserves the

stamp of approval of this Court.

8. To appreciate the controversy, it is necessary to refer to the letter-

circular dated 20th September, 2009 issued by the CBSE. It deals with

examination reforms and CCE in the CBSE. In the said letter-circular, it

has been mentioned that in the larger context, education is to prepare

futuristic citizen for a meaningful and productive life in a globalised

society and hence there is a dire need to strengthen the education system

LPA No.563/2011 page 5 of 19 moreso in a pluralistic society which addresses itself to a heterogeneous

group.

9. Regard being had to the introduction of a functional and system of

school based evaluation, the CBSE has stipulated in the scheme how the

scheme would be helpful. We think it appropriate to reproduce clauses 1

to 5 of the said letter-circular, which read as follows: -

"1. Scheme of the Board

1.1 Senior Secondary Schools

a) There will be no Class X Board Examination w.e.f.

2011 for students studying in CBSE‟s Senior Secondary schools and who do not wish to move out of the CBSE system after Class X.

b) However, such students of Senior Secondary Schools who wish to move out of the CBSE system after Class X (Pre-University, Vocational course, Change of Board, etc.) will be required to take the Board‟s External (pen and paper written/online) Examination.

c) Further, those students who wish to assess themselves vis-à-vis their peers or for self assessment will be allowed to appear in an On Demand (pen and paper/online) Proficiency test.

1.2 Secondary Schools The students studying in CBSE‟s Secondary schools will however be required to appear in Board‟s External (pen and paper written/online) Examination because they will be leaving the secondary school after Class X.

LPA No.563/2011                                                page 6 of 19
              1.3   All Schools

1.3.1 The Continuous and Comprehensive Evaluation (CCE) will be strengthened in all affiliated schools with effect from October, 2009 in Class IX.

1.3.2 An Optional Aptitude Test developed by the CBSE will also be available to the students. The Aptitude Test along with other school records and CCE would help students, parents and teachers in deciding the choice of subjects in Class XI. All students of Class X in the current academic year will be taking the CBSE Board‟s Class X 2010 Examination. The CBSE will be conducting this Examination. The weightage of the school based assessment will remain the same as per past practice, i.e. 20% each in the subjects of Science, Social Science and Mathematics.

1.3.3 The new Grading system will be introduced at Secondary School level (for Classes IX & X) effective from 2009-10 Academic Session. The details of grading scheme are being circulated in a separate advisory to schools.

2. How would the Scheme help?

The above steps would help the learners and parents, who are the primary stakeholders or school education, in the following manner:-

a) It will reduce stress and anxiety which often builds up during and after the examination which could have an adverse impact on young students especially in the age group of 13-15 years.

b) It will reduce the dropout rate as there will be

LPA No.563/2011 page 7 of 19 less fear and anxiety related to performance.

c) In the past there was practice to often finish the entire syllabus much before time and follow it up with Pre-Board(s) and study leave. Now there will be greater focus on learning rather than teaching to the test.

d) The emphasis on conceptual clarification through experimental learning in the classroom will increase since there will be more time available for transaction of curriculum.

e) It will help the learners to develop holistically in terms of personality by also focusing on the co-scholastic aspects which will be assessed as part of the Continuous and Comprehensive Evaluation scheme.

f) It is expected to prepare the students for life by making students physically fit, mentally alert and emotionally balanced.

g) The students will have more time on their hands to develop their interests, hobbies and personalities.

h) It will enable the students, parents and teachers to make an informed choice about subjects in Class XI.

i) It will motivate learning in a friendly environment rather than in a fearful situation.

j) It will equip students with Life Skills especially Creative and Critical thinking skills, social skills and coping skills which will keep them in a good stead when they enter into a highly competitive environment later on.

3. Addressing the Concerns

The CBSE has been discussing the matter with its stakeholders all over the country. A number of issues are likely to be raised by students/parents

LPA No.563/2011 page 8 of 19 regarding this initiative, as it is being done for the first time by any Board in India. A compilation of such issues, and solutions offered by the Board in the form of FAQs (Frequently Asked Questions) will be soon available on the CBSE website. In case of any clarification you may write through the CBSE‟s website (detailed below) or mail your queries to the Chairman CBSE by superscribing "CBSE Examination Reform" on the top of the envelop.

4. CCE Guidelines

Many of the Schools are already aware about the CCE and are implementing the same. However, in order to improve the quality of CCE, the detailed guidelines are being issued and will reach the schools shortly. These will also be available on CBSE website (www.cbse.nic.in)

5. Teacher Workshops

Teacher training workshops will be conducted simultaneously from October 2009 onwards.

These training workshops will be compulsory for the Heads of Schools and two teacher representatives. Details of these will be available on the CBSE‟s website. Principals and trained teachers will be thereafter interacting with parents during Parent Teacher Meetings to create awareness regarding the Board‟s Scheme and address their concerns."

10. In the letter-circular dated 29th September, 2009, the CBSE addressed

the issue pertaining to introduction of grading at secondary school level

LPA No.563/2011 page 9 of 19 for classes 9th and 10th from the academic session 2009-2010. In the said

letter-circular reference has been made to the National Curriculum

Framework 2005 (NCF) which has envisaged an evaluation system which

would grade the students on their regular activities in the classroom and

enable students to understand and focus on their learning gaps and learn

through these as part of formative assessment. The scheme of grading, its

utility, advantage and operational modalities are given in detail. They

read as follows: -

"2. Scheme of Grading

2.1 As a matter of fact the Board has been preparing itself and all the stakeholders for a change to move over from numerical marking system to grading system during the past few years by creating a climate of acceptance. The Board has already in a phased manner, introduced the grading system based on absolute marks up to class VIII.

2.2. Now, therefore, the CBSE, in consultation with the Ministry of Human Resource Development, Government of India has decided to introduce nine point grading system.

2.3 In this system, student‟s performance will be assessed using conventional numerical marking mode, and the same will be later converted into the grades on the basis of the pre-determined marks ranges as detailed below:

LPA No.563/2011                                                page 10 of 19
               MARKS RANGE              GRADE             GRADE POINT
                   91-100                A1               10.0
                    81-90                A2                9.0
                    71-80                B1                8.0
                    61-70                B2                7.0
                    51-60                C1                6.0
                    41-50                C2                5.0
                    33-40                D                 4.0
                    21-32                E1                ---
               20 and below              E2                ---

2.4 The Board has decided to introduce the above grading scheme at Secondary level for classes IX & X from current academic year 2009-10. Accordingly, the „Statement of Subject wise Performance" to be issued by the Board w.e.f. the Class X Examination 2010 will have only grades.

2.5 Similarly, the schools are also directed to introduce the above Grading Scheme in the evaluation of their students in Class IX under the scheme of CCE as detailed in the Circular No. 39 dated 20th September, 2009.

3. How does it help?

3.1 The primary function of Grading is to communicate effectively to a variety of stakeholders the degree of achievement of an individual student. The grading of student would also take away the frightening judgmental quality of marks obtained in a test leading to a stress free and joyful learning environment in the school. This will also enable maintaining a meaningful continuity in the assessment pattern from the primary level to the secondary level and also in ensuring a basic uniformity in the schools.

3.2 The system being implemented now will have the following advantages:

LPA No.563/2011 page 11 of 19  It will minimize misclassification of students on the basis of marks.

 It will determine unhealthy cut-throat competition among high achievers.  It will reduce societal pressure and will provide the learner with more flexibility.  It will lead to a focus on a better learning environment.

4. Operational Modalities

4.1 The student‟s performance shall be assessed using conventional method of numerical marking.

4.2 The „Grades‟ shall be awarded to indicate the subject wise performance.

4.3 The „Grades‟ shall be awarded on a nine point scale as per Table at para 2.3.

4.4 Only Subject wise grades shall be shown in the "Statement of Subject wise Performance" to be issued to all candidates.

4.5 Subject-wise percentile score/rank at the National level shall be provided to the schools on demand.

4.6 The practice of declaring Compartment/Fail shall be discontinued.

4.7 Those candidates who obtain the qualifying grades (D and above) in all the subjects excluding Additional subject as per Scheme of Studies shall be awarded a Qualifying Certificate. 4.8 Those candidates who have obtained E1 or E2 in the subject shall have to improve their performance through subsequent five attempts.

LPA No.563/2011 page 12 of 19 For example, a candidate who appeared in Board's examination in March 2010 can appear in July 2010, March 2011, July 2011, March 2012 and July 2012 only in subjects in which he/she has got grade E1 or E2 till he/she gets qualifying grades (D and above) in all the subjects excluding Additional subject as per Scheme of Studies and becomes eligible for award of Qualifying Certificate.

4.9 Those who get Qualifying Certificates shall be eligible for admission in higher classes.

4.10 Those candidates who are not able to get qualifying grades (D and above) in all the subjects excluding Additional subject as per Scheme of Studies shall not be permitted for admission in Class XI.

4.11 Exemptions available to differently abled students as per CBSE‟s rule shall continue to apply.

4.12 The scheme shall also be applicable mutatis mutandis in the assessment of academic performance communicated to the students at the end of Class IX."

11. We have reproduced both the schemes in extenso to appreciate what

precisely the CBSE has done. As is noticeable, the whole endeavour has

been to improve the system of education, reduce the load on the students,

usher in assessment-oriented approach, cultivate a holistic system and

further make the education system more effective and productive regard

being had to the global trend and the requirement of 21st Century. The

LPA No.563/2011 page 13 of 19 CBSE, as is perceptible, has withdrawn the class 10th Board examination

and introduced the grading system. We have reproduced the table

relating to the grading system. It is submitted by Ms.Shobha, learned

counsel for the appellant that though the CBSE has put the policy decision

at a higher platform but the policy is neither fair nor non-arbitrary and

further it really does not disclose a discernible principle which would

satisfy the test of reasonableness. Learned counsel would submit that

examination reforms would never mean a routine change of method of

assessment by replacing marks by grades because it is only a cosmetic

change pertaining to assessment without bringing in other real necessary

spectra. It has been highlighted by her that the change in the typology of

the question papers and integration of the examination with the classroom

life would have really addressed the need and the concern and met the

requirement. It is urged that the method chosen by the CBSE is a

temporary and short-cut one in the name of holistic approach whereas it

really mars the quality of education and eventually the young students are

disastrously affected. It is canvassed by her that by virtue of the aforesaid

change, the system has not become healthy but the concept of grading is

virtually an eye-wash, which in ultimate eventuate would erode the

LPA No.563/2011 page 14 of 19 quality of the education system. As we have noted, the CBSE has replaced

marking system with the grading system and abolished the examination in

the 10th class. The scheme has been framed with the assistance of the

experts. It needs no special emphasis to state that the CBSE is an expert

body and taken advice from the experts and there has been a study on the

said aspect for some years.

12. Thus scrutinized, it is evident that the CBSE has kept in view the

interest of the young students and taken a policy decision to introduce a

different evaluation system. What is urged before us is that such a system

is arbitrary, unreasonable and irrational as it corrodes the marrows of

education by annulling the earlier system which provided for competing

in the board examination and obtaining marks. Be it noted, it is an

accepted fact that education is an extremely important facet of a civilized

society. It always had its signification and has gained more importance in

the modern day. As has been held in the case of Rohit Singhal & Ors. v.

Principal, Jawahar N. Vidyalaya & Ors., AIR 2003 SC 2088, education is

an investment made by the nation in its children for harvesting a future

crop of responsible adults who contribute to a well functioning society.

Students require nurture, care, protection and they have to be imbibed

LPA No.563/2011 page 15 of 19 with values of character. Education, as has been understood since

centuries, pertains to acquisition of information, knowledge, skill and

building up a rational mind. In the present scenario more focus and

emphasis have been laid on vocational and professional trainings. The

system of education has to be purposive. It guides a student at the tender

age and gradually shows him the path to enter into the different fields of

education, which have productivity, global awareness and

professionalism. The elan vital of education is to accept limitation and

strike a balance between tradition and modernization. It is an obligation of

today‟s generation to pay the debt to the future one. That is what the

CBSE has sought to achieve by introducing the new system.

13. Though the learned counsel for the appellant would criticize such

norms on certain grounds which we have indicated hereinbefore yet this

Court is not an expert to judge the decision of the CBSE that has been

arrived at after undertaking detailed exercises. It is a policy decision and

that too a policy decision relating to the field of education. One may not

be in a position to accept the same. To some, it may look like abolition of

competition and to others it may look simplistic. There may be a few who

may feel that in the name of change, a cosmetic approach has been done

LPA No.563/2011 page 16 of 19 and it could have been better. But, a significant one rider and limitation,

the role of the Court in exercise of judicial review is limited. In the

University of Mysore and Anr. v. C.D. Govinda Rao & Anr., AIR 1965 SC

491, it has been held that Courts should be slow to interfere with the

opinions expressed by the experts and the same should be left to the

decision of the experts who are more acquainted and familiar with the

problems.

14. In The Secretary & Curator, Victoria Memorial Hall, v. Howrah

Ganatantrik Nagrik Samity & Or., AIR 2010 SC 1285, it has been stated

thus -

"26. Thus, it is evident that the High Court did not give any specific/good or relevant reason for not accepting the recommendation made by Expert Committee at initial stage or while rejecting the application for modification vide impugned order.

27. The Constitution Bench of this Court in The University of Mysore and Anr. v. C.D. Govinda Rao & Anr., AIR 1965 SC 491 held that "normally the Court should be slow to interfere with the opinions expressed by the experts." It would normally be wise and safe for the Courts to leave the decision to experts who are more familiar with the problems they face than the Courts generally can be.

28. This view has consistently been reiterated by this Court as is evidence from the Judgments in The State of

LPA No.563/2011 page 17 of 19 Bihar & Anr., v. A.K. Mukherjee & Ors., AIR 1975 SC 192; Dalpat Abasaheb Solunke etc. etc. v. Dr. B.S. Mahajan etc. etc., AIR 1990 SC 434; Central Areca Nut & Cocoa Marketing & Processing Co-operative Ltd. v. State of Karnataka & Ors., (1997) 8 SCC 31 : (AIR 1998 SC 2399 : 1998 AIR SCW 2348); and Dental Council of India v. Subharti K.K.B. Charitable Trust & Anr., (2001) 5 SCC 486: (AIR 2001 SC 2151 : 2001 AIR SCW 1883).

29. However, if the provision of law is to be read or understood or interpreted, the Court has to play an important role. [Read: P.M. Bhargava & Ors. v.

University Grants Commission & Anr., AIR 2004 SC 3478 : (2004 AIR SCW 3194) and Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal Univesity, Sirsa & Anr., (2008) 9 SCC 284 : (AIR 2009 SC (Supp) 768 : 2009 AIR SCW 5817)."

15. In State of Himachal Pradesh & Ors. v. Himachal Pradesh Nizi

Vyavsayik Prishikshan Kendra Sangh, (2011) 6 SCC 597 it has been held

thus -

"As rightly pointed out by Mr. Altaf Ahmed, without any arguments having been heard, without there being any question raised by any party as to the validity of the Cabinet decision dated 18-7-2009 and without the same being in question, or any relief sought for in the writ petition, the High Court has gone into the said decision of the Cabinet having taken place after the judgment was reserved. The decision of the Cabinet generally ought not to be interfered with in judicial review so lightly as has been done in the present case. The quashing of the Cabinet decision without analysing the pros and cons in the manner seeks to restrict the State‟s

LPA No.563/2011 page 18 of 19 constitutional authority and powers to frame policy especially in such vital areas like imparting technical education is not acceptable."

16. In view of the aforesaid analysis, we are unable to persuade

ourselves to accept the submission of learned counsel for the appellant that

the letter-circulars/the policy decisions introducing the new methodology

of CBSE invites the frown of Article 14 of the Constitution of India being

unreasonable and arbitrary. Resultantly, the appeal, being sans substance,

sands dismissed without any order as to costs.

                                                  CHIEF JUSTICE



SEPTEMBER 01, 2011                                SANJIV KHANNA, J.
kapil




LPA No.563/2011                                                page 19 of 19