Akshita Kohli vs Directorate Of Education & Ors
2015 Latest Caselaw 4639 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    W.P.(C) 2873/2015 & CM No.5151/2015 (for directions)
     AKSHITA KOHLI                          ..... Petitioner
                      Through: Counsel for the petitioner
                                (appearance not given)
                      Versus

       DIRECTORATE OF EDUCATION & ORS. ..... Respondents
                    Through: Ms. Nikhita Khetrapal, Adv. for
                               R-1&2.
                               Col. S.S. Bhandari (Retd.),
                               Honorary Manager of R-3.
                               Mr. A.K. Singh, Adv. for R-4.
                               Mr. Amit Bansal, Adv. for R-5.
       CORAM:
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                    ORDER

% 02.07.2015

1. The petition (filed on 19th March, 2015) seeks a mandamus

directing the respondent No.3 Guru Nanak Public School (GNPS),

Punjabi Bagh, New Delhi and respondent No.5 Central Board of

Secondary Education (CBSE) (wrongly impleaded as Central Board of

Secondary School) to permit the petitioner to take the examination for

Class XII for the academic session 2014-15 (and which examination

commenced from 2nd March, 2015) as a regular student and to also

allow her to appear as Eligible for Improvement of Performance

(EOIP) candidate for examination in subjects already held. Further

relief of prohibiting the respondent No.3 GNPS from giving effect to

their order detaining the petitioner in Class XI on the ground of

shortage of attendance and absence in examination, is also claimed.

2. The writ petition is dated 18th March, 2015 and came up before

this Court first on 23rd March, 2015. The counsel for the petitioner

informs that by the time the writ petition was filed, the examination

conducted by the respondent No.5 CBSE in two of the subjects were

over.

3. Though notice of the petition was issued but no interim relief

was granted.

4. A counter affidavit has been filed by the respondents No.1&2

Directorate of Education (DoE). No counter affidavit has been filed

by the respondent No.4 Delhi Commission for Protection of Child

Rights (DCPCR) or the respondent No.5 CBSE. Col. S.S. Bhandari

(Retd.), Honorary Manager of GNPS, Punjabi Bagh, Delhi appears in

person and has handed over a reply which is taken on record.

5. The counsel for the petitioner and the other appearing counsels

and Col. S.S. Bhandari (Retd.) have been heard.

6. The counsel for the petitioner has argued, i) that the petitioner

had taken the Class X examination from S.D. Public School in the

year 2012; ii) the mother of the petitioner was and is still a teacher in

the said school; iii) owing to certain differences between the mother

of the petitioner and the management of the said school, the said

school wrongly withheld the result of the petitioner leading the

petitioner to pursue the matter at different levels and whereafter her

Class X result was ultimately declared making her eligible for

admission to Class XI; iv) however in the process, the petitioner lost

one year; v) that owing to the said conduct of the S.D. Public School,

the petitioner was no longer interested in pursuing Class XI therein

and took admission in the respondent No.3 GNPS in Class XI in the

year 2013; vi) that the respondent No.3 GNPS also turned against the

petitioner and marked the petitioner as absent in examination in

several subjects taken by her in the first term examination of Class XI

even though the petitioner had appeared in the said examination.

Attention in this regard is invited to the first term report and the final

report of the petitioner of Class XI and it is argued that there are

inconsistencies between the final report and the first term report and

which according to petitioner establish the falsity of the first term

report.

7. As per the final report of the petitioner of Class XI, the

petitioner secured only 18.3% marks and was detained in Class XI.

Aggrieved therefrom, this petition has been filed.

8. Though the petitioner was so detained at the end of the

academic session 2014-15 but this petition was filed after about a year.

The counsel for the petitioner states that the petitioner was

approaching various authorities in the interregnum. It is also stated

that the father of the petitioner passed away in the interregnum and the

mother of the petitioner was ill.

9. I am unable to find any such inconsistencies in the first term

report and the final report (supra) as to be able to conclude, it having

been established beyond any doubt that the respondent No.3 school is

anti petitioner and has intentionally wrongfully marked the petitioner

as absent in the examination.

10. The counsel for the petitioner of course during the hearing has

handed over purported answer sheets of final examination of Class XI

in two subject and contends that the same also falsify the final report

of the petitioner. On enquiry as to how the said answer sheets, which

ordinarily ought to be in possession of the school, are in possession of

the petitioner, it is informed that the same were given to the petitioner

for review and the petitioner has retained the same. However, the said

answer sheets also have been produced only today and there is no plea

with respect thereto in the petition.

11. The counsel for the petitioner of course states that on

opportunity being given, he will file the same in this Court along with

an affidavit.

12. The said grievances of the petitioner against the respondent

No.3 School were examined by the respondent No.1 DoE also which

conducted an inquiry and report whereof is also against the petitioner.

No merit was found in any of the allegations made by the petitioner

against the respondent No.3 GNPS.

13. The respondent No.3 School in its counter affidavit of course

denied the said allegations.

14. The counsel for respondent No.4 DCPCR states that though the

petitioner had approached DCPCR but had crossed the age of 18 years

and DCPCR thus did not have jurisdiction over the matter.

15. The counsel for the respondent No.5 CBSE states that unless the

petitioner has passed Class XI, the question of her being entitled to

appear in Class XII examination conducted by the CBSE does not

arise.

16. I refrain from recording or dealing with certain other allegations

made by the petitioner inasmuch as in my opinion, the petitioner

cannot be allowed the relief sought without it being conclusively

established that she indeed had appeared in the Class XI examination

and had passed the same and that the respondent No.3 School is

wrongly disputing the same and which conclusion cannot be reached

in writ jurisdiction. The said conclusion can be reached only by

examination and cross-examination of witnesses and proof of

documents and which is a domain of a civil suit and not of writ

jurisdiction. The counsel for the petitioner of course contends that the

documents produced by him prima facie show a case pleaded to be

made out. However, in my opinion a direction condemning the school

as having indulged in falsehood and having victimised the petitioner

and on the basis thereof declaring the petitioner as passed cannot be

issued on a prima facie view of the matter but only on conclusive

factual inquiry. It cannot be lost sight of that any such finding by the

Court, of a school having victimised its student, can be extremely

detrimental to a school and can sound a death knell for the school, its

Principal and teachers.

17. Not finding any plea in the petition, of the reason for the

respondent No.3 School so targeting the petitioner, question in this

respect was put to the counsel for the petitioner. All that he could say

was that the Principal of S.D. Public School aforesaid with which the

petitioner earlier had problems has moved to another Guru Nanak

Public School. I find it rather intriguing as to why a school would

pick a particular child and spoil his / her career.

18. Division Benches of this Court of which the undersigned was a

member, in Nishant Gupta Vs. University of Delhi

MANU/DE/5881/2012 and in Heena Bahal Vs. University of Delhi

197 (2013) DLT 469 have held that there is no reason to doubt the

records of attendance maintained by all educational institution and a

challenge to the record of attendance maintained by educational

institution cannot be subject matter of judicial review. It was further

held that such records have to believed and the educational institution

cannot be put to proof thereof and if so directed, will forever be

involved in same only rather than in academic pursuits. The said

principle applies to present situation also.

19. The counsel for the petitioner at this stage states that the school

should be directed to produce the answer scripts of the petitioner.

20. No such opportunity can be granted at this stage and in view of

the above, will not serve any purpose.

21. There is no merit in the petition which is dismissed; however

with the clarification that the same shall not preclude the petitioner

from agitating the same issue by way of a civil suit.

I refrain from imposing costs.

RAJIV SAHAI ENDLAW, J.

JULY 02, 2015 'gsr'