Delhi High Court
Sanyam Gupta vs Central Board Of Secondary ... on 14 August, 2020
SINDHU KRISHNAKUMAR
18.08.2020 19:11
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th August, 2020
+ W.P.(C) 4403/2020
SANYAM GUPTA ..... Petitioner
Through: Mr. Rishi Manchanda & Mr. Arun
Kumar, Advocates (M-9911681178)
versus
CENTRAL BOARD OF SECONDARY
EDUCATION ..... Respondent
Through: Mr. Amit Bansal & Ms. Seema Dolo,
Advocates with Dr. Sanyam
Bhardwaj, Controller of
Examinations, CBSE
Ms. Maninder Acharya, Sr.
Advocate/Amicus Curie
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done by video conferencing.
2. The present petition has been filed by the Petitioner - Mr. Sanyam
Gupta, who is a student of Sri Venkateshwar International School, Dwarka
and had appeared in the Central Board of Secondary Education ("CBSE")
Class 12th examination held in February-March, 2019 and secured 95.25%.
He decided to drop one year as he was desirous of obtaining admission in a
premier college in the University of Delhi. The subjects he had taken in Class
12 were English Core, Economics, Physical Education, Business Studies,
Accountancy and Mathematics.
3. In order to improve his score, the Petitioner decided to re-appear in
Accountancy, English Core, Economics and Business Studies for an
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improvement examination. The improvement examinations for English Core,
Accountancy and Economics took place on 27th February, 2020, 5th March,
2020 and 13th March, 2020 respectively. However, the Business Studies paper
which was scheduled for 24th March 2020 was cancelled due to the lock down
announced on account of COVID-19.
4. Mr. Manchanda, ld. Counsel appearing for the Petitioner has two
prayers. First, is that his result for the improvement examinations ought to be
declared and the second is that in respect of the cancelled paper of Business
Studies, he should be treated at par with the regular students for whom an
assessment scheme in respect of cancelled papers was approved by the
Hon'ble Supreme Court vide its orders dated 25th June, 2020 and 26th June,
2020.
5. Mr. Bansal, ld. Counsel for the CBSE had appeared on advance notice
and submitted on 21st July, 2020 that the result for the improvement
examinations would be declared before 27th July, 2020. Accordingly, the
matter was listed on 28th July, 2020 and the Court was informed that the result
of the Petitioner has been declared. The Petitioner scored 99% in
Accountancy, 98% in English Core and 92% in Economics. Mr. Manchanda
submitted that the Petitioner has applied for revaluation in respect of his
Economics paper.
6. Mr. Bansal had submitted that CBSE had taken a separate decision in
respect of students who had appeared for the improvement examination. The
assessment scheme which was placed before the Supreme Court was only in
respect of Regular students who were unable to appear even once for the
examination in subjects for which the exams were cancelled. CBSE was then
directed to place on record the minutes of meeting held by CBSE in respect of
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assessment of students who appeared in the improvement examinations. On
29th July, 2020 minutes of meeting dated 9th July, 2020 were placed on record.
The same revealed that CBSE had taken a specific decision in respect of
improvement candidates. Mr. Bansal submits that the improvement
candidates cannot be treated in the same manner as regular students who had
approached the Supreme Court and for whom the scheme was formulated and
approved on 26th June, 2020. His submission is that in the improvement
examinations, there are several students whose marks are increased and there
are several students whose marks would be decreased as well. As per ld.
counsel, a student who appears in the improvement examination has to give
up the marks already scored. In view thereof, if an order is passed directing
en bloc that for cancelled improvement examinations, the average of the best
of the two improvement examinations' score would be awarded, it may put
the students, who may not even have appeared for the improvement
examinations or whose examinations were cancelled, at a severe
disadvantage. Mr. Bansal also informs the Court that the result committee,
which had earlier taken the decision in the notification extracted in order
dated 26th June, 2020 is the same result committee, which has thereafter taken
the decision in respect of improvement students.
7. Mr. Bansal further submits that insofar as the candidates whose
improvement examinations are cancelled are concerned, such candidates have
the option of either dropping the improvement examination and retaining
their old score or taking the improvement examination at a later stage,
whenever it is conducted. Mr. Bansal has also made the submission that
insofar as improvement students are concerned, they are entitled to apply for
revaluation and the timelines for the same have been extended in respect of
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the improvement students.
8. Mr. Manchanda, however, objects to the stand taken by CBSE. The
first submission is that the scheme which was proposed by CBSE before the
Supreme Court should apply en bloc to all the candidates, including the
candidates who had appeared in the improvement examinations. According to
him, if a particular improvement examination is cancelled, the score for the
same is to be calculated by taking the average score of the best two
improvement examinations. He submits that the Petitioner should not be
deprived of the benefit given to regular students. Mr. Manchanda argues that
after acceptance of the scheme in respect of cancelled examinations by the
Supreme Court, there was no cause for CBSE to hold a separate meeting in
respect of improvement students. Ld. Counsel further submits that the
assessment scheme, as recorded in the minutes of meeting dated 9 th July,
2020, is a complete after thought of CBSE as initially no separate scheme was
proposed for improvement candidates. He submits that the manner in which
the meeting has taken place has also cast a serious doubt as to the genuineness
of the meeting dated 9th July, 2020. Ld. counsel submits that for the Business
Studies paper of the Petitioner, the Petitioner ought to be awarded the average
of 99% and 98% i.e., the average of his top two improvement exams. Ld.
counsel also raises a doubt as to the minutes of meeting dated 9 th July, 2020,
by submitting that despite the said meeting, the results were not declared till
22nd July, 2020. As per him, this shows that the minutes were not in existence,
though the result of the regular students was declared on 13th July, 2020.
9. On 29th July 2020, the matter was part-heard and Ld. Counsels sought
time to cite certain judgements in support of their case. At that stage this
Court had appointed Ms. Maninder Acharya Sr. Advocate as Amicus Curiae
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to assist the court.
10. Mr. Manchanda relies upon the judgments of this Court in -
• Nikhil Sharma v. Guru Gobind Singh Indraprastha University
[W.P(C) No. 106012 of 2017, Decided on 15th March 2018] and
• Poonam v. Guru Gobind Singh Indraprastha University [W.P(C)
No. 8242 of 2016, Decided on 3rd November 2016]
He submits that the CBSE Bye-laws permit candidates to rely upon both the
marksheets i.e. first marksheet and the improvement marksheet. Both these
judgments have held that since the CBSE Bye-laws do not prohibit the
reliance upon either marksheet, the candidate has the choice to rely upon the
marksheet which has better marks. The candidate therefore does not forfeit
either of his marks. In the context of GGSIPU who was the Respondent in
these cases, the admission booklet which provided that only the latter i.e.
improvement marksheet would be considered was held to be invalid.
11. It is further submitted that even the IITs permits reliance on the better
marks, as is clear from the booklet of IIT JEE (Advanced) 2020 course.
Question 43 of the Frequently Asked Questions in the said booklet, clarifies
that the percentage marks of the candidates would be calculated on the basis
of the higher marks when the candidate re-appears in the examination.
Reliance is also placed on brochure of the National Institute of Open School
which lays down that when a candidate appears for the improvement
examination, the better of the results would be considered.
12. Ld. Amicus relying upon the said very two judgments submits that the
Court has taken a liberal view in favour of the students to enable the
students to rely upon the better marks which he or she has obtained. The law
is well settled in the judgments of Poonam (supra) and Nikhil Sharma
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(supra) according to the ld. Amicus that both the marksheets i.e. initial
marksheet and the improvement marksheet would be valid.
13. Insofar as the scheme which was notified by the CBSE and approved
by the Supreme Court is concerned, ld. Amicus submits that the
improvement candidates may not have been in the contemplation while
approving the scheme. However, there is no reason why the benefit which
has given to regular students, ought not to be extended to the improvement
candidates. In the context of the present Petitioner, ld. Amicus submits that
the Petitioner has clearly sacrificed one full academic year for improving his
scores in the examination and he registered to appear in four subjects to
improve his score. In the improvement examinations where he was able to
appear, his score has considerably improved in two subjects over his
previous marks. She submits that he should not be deprived of the scheme of
the CBSE, since fourth examination got cancelled.
14. Mr. Bansal, ld. counsel submits that insofar as the Petitioner is
concerned, the candidate was able to increase his marks in two of the papers
and in one examination, the score was decreased. Thus, he submits that there
are several similarly placed candidates who have appeared in the
improvement examinations and the CBSE's formulation of the scheme was
meant only for regular candidates and not for candidates appearing in the
improvement examination.
Analysis and Findings
15. This Court has considered the rival contentions of both the parties. The
CBSE conducts Class X and Class XII every year. Lakhs of students appear in
these examinations. This year's examinations were scheduled between
February-March 2020. Examinations for several subjects were conducted as
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scheduled. However, due to the sudden lockdown announced upon the
outbreak of the COVID-19 pandemic, examinations for some subjects could
not be held. Sometime in the end of May 2020, an announcement was made
that the examinations which were cancelled would be held in July 2020. In
June 2020 a writ petition came to be filed before the Hon'ble Supreme Court
being W.P.(Civil) 566 of 2020. During the pendency of the said writ petition
CBSE took a decision to cancel all the remaining examinations. It formulated
an `Assessment Scheme' laying down the modalities for assessing students.
The said Assessment Scheme was presented as a draft Notification to the
Supreme Court on 25th/ 26th June 2020. The Supreme Court approved the
same vide order dated 26th June 2020. The relevant portion of the order reads:
"1. The core issue involved in these matters is
about conducting examinations for classes X and
XII of the Central Board of Secondary Education
(CBSE) and the Indian Certificate of Secondary
Education (ICSE) respectively.
2. As regards CBSE examinations, the CBSE
has presented a draft notification for our
consideration.
3. After perusing the same and taking into
account the suggestions given by the counsel
appearing for the concerned parties, we see no
difficulty in permitting the CBSE to issue the said
notification forthwith. The draft notification reads
thus:
NOTIFICATION
Keeping in view the requests received
from various State Governments and the
changed circumstances as on date,
following has been decided:-
1. Examinations for classes X and XII
which were scheduled from 1st July to
15th, 2020 stand cancelled.
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2. Assessment of the performance of
students in the cancelled examinations
will be done based on the assessment
scheme as suggested by competent
committee of the CBSE for declaration of
result for both class-X and class-XII. The
said scheme is mentioned in Para-7
below.
3. Results based upon the aforesaid
assessment scheme will be declared by
15th July, 2020 so that candidates can
apply and seek admissions in Higher
Education Institutions in India and
abroad, based thereon.
4. However, for Class-XII, CBSE will
conduct an optional examination in the
subjects whose examinations were
scheduled to be conducted from 1st July
to 15th July, 2020 as soon as conditions
are conducive, as assessed and decided
by the Central Government. Candidates
whose results will be declared based on
the assessment scheme will be allowed to
appear in these optional examinations to
improve their performance, if they wish
so. However, the marks obtained by a
candidate in these optional examinations
will be treated as final for those who have
opted to take these examinations.
5. For candidates in Class X, no further
examinations will be conducted and the
result declared by CBSE on the basis of
assessment scheme will be treated as
final.
6. For class-XII, the result declared by the
CBSE under Sl. No. (2) above will be
considered as final unless the students opt
for Sl. No. (4) above.
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7. Assessment Scheme:-
(a) For the students of both classes-X and
XII, who have completed all their
examinations, their results will be
declared based on their performance in
the examinations.
(b) For students who have appeared in the
examinations in more than 3 subjects, the
average of the marks obtained in best
three performing subjects will be
awarded in the subjects whose
examinations have not been conducted.
(c) For students who have appeared in the
examinations in only 3 subjects, the
average of the marks obtained in the best
two performing subjects will be awarded
in the subjects whose examinations have
not been conducted.
(d) There are very few students of
class-XII, mainly from Delhi, who have
appeared in the examinations in only 1 or
2 subjects. Their results will be declared
based on performance in the appeared
subjects and performance in
internal/practical project assessment.
These students will also be allowed to
appear in the optional examinations
conducted by CBSE to improve their
performance, if they desire to do so.
Result of these students will also be
declared along with other students.
4. Resultantly, all these petitions pertaining to
CBSE examinations pending in this Court or any
other Court shall be deemed to be disposed of in
terms of the proposed notification to be issued by
the CBSE.
5. Accordingly, if any other petition is pending
in this Court or any other Court concerning the
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subject of conducting examinations for Classes X
and XII by the CBSE scheduled from 1st July, 2020
to 15th July, 2020, the same will be governed by this
order and the notification approved by this Court."
16. As per the above Scheme, the students were to be awarded marks for
the cancelled examinations and promoted based on the average performance
in the examinations where they appeared. The formula evolved was:
i. If a student had appeared in more than 3 subjects, in the subject for
which the examination was cancelled, the average of the best three
scores would be awarded;
ii. If a student had appeared in only 3 subjects, in the subject for which the
examination was cancelled, the average of the best two scores would be
awarded;
iii. In case of students who have appeared only in 1 or 2 subjects, results to
be declared on the basis of the performance in the said subjects along
with the internal/practical project assessments. Such students would
have the option of appearing in the optional examinations to be
conducted by CBSE for improving their performance if they so desire.
The contention of the Petitioner is that he has appeared in three subjects and
the average of the best two scores ought to be awarded to him for the
cancelled examination viz., Business Studies.
17. The question that arises is as to whether the regular students and
students who appeared for the improvement examinations (hereinafter
`Improvement students') should be treated at par with each other and the
assessment scheme approved for regular students should be applied for the
Improvement students. The CBSE's stand is that they cannot be treated on par
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as the Improvement students have already had the opportunity to appear once
in the examinations which the regular students did not have. The Assessment
scheme is meant for students who were not able to appear for examinations
even once. From a reading of the draft notification and the order of the
Supreme Court, it is clear that the distinction between these two sets of
students has not been raised by the CBSE before the Supreme Court when the
CBSE's scheme was approved on 25th June, 2020 and 26th June, 2020. Thus,
the orders of the Supreme Court did not make any reference to the
improvement students.
18. Before proceeding to deal with the Petitioner's contention, another
aspect as to the settled position qua Improvement examinations need to be
highlighted. The CBSE's Bye-Laws deal with Improvement examinations as
under:
"44. Improvement of Performance/Upgrading of
Performance 44.1 Senior School Certificate
Examination
(i) A candidate who has passed an examination of the
Board may reappear for improvement of performance
in one or more subjects in the succeeding year only;
however, a candidate who has passed an examination
of the Board under Vocational Scheme may reappear
for improvement of performance in the main
examination in the succeeding year or the following
year provided they have not pursued higher studies in
the mean time. They will appear as private candidates.
Those reappearing for the whole examination may,
however, appear as regular candidates also if admitted
by the school as regular candidates. The candidate(s)
appearing for improvement of performance can appear
in the subject(s) in which they have appeared for the
Examination.
(ii) For subjects involving practical work, in case the
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candidate has passed in practical at the main
examination, he/she shall be allowed to appear in the
theory part only and marks in practical obtained at the
main examination shall be carried forward and
accounted for. In case a candidate has failed in
practical he/she shall have to appear in theory and
practical both irrespective of the fact that he/she has
already cleared the theory examination.
(iii) Candidates who appear for improvement of
performance will be issued only Statement of Marks
reflecting the marks of the improvement examination.
(iv) A candidate appearing for improvement of
performance in one or more subjects cannot appear for
additional subject simultaneously.
(v) Candidates appearing in six subjects at the Senior
School Certificate Examination having been declared
'Pass' by virtue of securing pass marks in five subjects
as per Rule 40.1(iv) may appear in the failing main
subject at the Compartment Examination to be held in
July the same year provided he/she had appeared at the
Examination held in March in the said subject."
19. The above bye-laws were the subject matter of the judgements of this
Court in Poonam (supra) and Nikhil Sharma (supra). In both these
judgments, ld. Single Judges of this Court, in the context of CBSE Bye-laws
have held that the students are entitled to rely upon the higher of the two
marks and neither marks are forfeited by the students. In the judgment in
Poonam (supra) the CBSE's stand was that if the student does not score
better marks, the earlier marks are not forfeited. The relevant paragraphs of
the judgment read as under:
"11. It is contended that for the Joint Entrance
Examination (Main) Conducted by CBSE itself for
admissions into Engineering programmes, it is
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clearly mentioned for 12th qualifying
examinations, that the candidate willing to appear
in the improvement examination to improve the
qualifying examination marks, will have to appear
in all the five subjects for improvement. The
Candidate can appear for improvement in the
succeeding year only. On the results being
declared the candidate has to submit as to which
year's qualifying examinations marks are to be
considered for the purpose of declaration of final
merit.
12. It is contended that the University has followed
the practice of considering the last of the two
marks sheet issued by CBSE. It is submitted that a
number of candidates, who have got the second
marks sheet upon improvement, approached the
University for Admission in different courses.
Those candidates who qualified for admission
based on the improvement exam result have been
given admission while those who did not qualify on
the basis of improvement exam have not been
given admission. It is contended that the University
has followed this policy without any discrimination
and has chosen to consider the marks which are
later given by the CBSE and not better marks, out
of the two.
13. It is submitted that applying the aforesaid
policy, since petitioner had opted for improvement
in Chemistry and Biology papers and the CBSE
had issued the mark sheet stating "FT" i.e. Failed
in Theory, the petitioner has been denied
admission.
14. Learned counsel for the University conceded
the fact that the said practise of considering the
marks which are later given by the CBSE and not
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the better of the two marks is not incorporated in
any bye law, rule or regulation and is also not part
of the information bulletin issued by the
University. Learned counsel for the University
admitted that the candidates have not been put to
notice of any such practise.
15. Learned counsel for CBSE submitted that when
a candidate appears in an improvement
examination, the mark sheet is issued only for the
improvement paper and no consolidated mark
sheet is issued.
16. Learned counsel for CBSE conceded that there
is no bye law or rule to the effect that if a
candidate opts for an improvement examination in
a subject, he/she would forfeit the result of the
main examination. Learned Counsel further
conceded, that if a candidate opts for an
improvement examination but does not improve the
marks, he/she can still rely upon the earlier result
and the mark sheet because the original mark
sheet is not cancelled by CBSE and continues to
remain valid.
...
22. The Bye-Laws do not stipulate that a candidate
who opts for an improvement examination forfeits
the result of the earlier examination. Candidates
are not even put to notice that if they opt to take an
improvement examination, they would forfeit their
earlier result.
23. There may be situations where a candidate
fails in a paper of the main examination and per
force has to appear in the improvement
examination. In such a situation, the candidate has
no option but to rely upon only the result of the
improvement examination. But there may be
situations where a candidate has otherwise passed
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the examination but for other reasons wishes to
improve his/her result. In such situations, making
a candidate forfeit the earlier result and that also
without putting the candidate to notice that the
earlier result would be forfeited would cause grave
prejudice and hardship to the candidate.
24. There may also be cases, like the present,
where a candidate opts for an improvement
examination but on account of medical or other
reasons absents himself/herself from appearing.
For such candidates to forfeit the result of the
main examination would be causing grave
prejudice and hardship.
25. A candidate who has otherwise passed an
examination and wishes to merely better the
earlier performance, may not exercise such an
option, if he/she were informed that the earlier
result would be forfeited. Furthermore, the stand
of the CBSE is not that the result of the earlier
examination is forfeited. The stand is that they do
not issue a consolidated mark sheet but issue a
mark sheet of only the improvement examination.
The candid admission on the part of CBSE is also
that the earlier mark sheet is not cancelled and
continues to remain valid. If the first mark sheet is
not cancelled and remains valid, then the marks
obtained by the candidate in the first examination
would also stand and the candidate would be
entitled to choose the better of the two, unless the
same is excluded by any rule or regulation.
26. Post appearing in the improvement
examination, candidates retain possession of both
the mark sheets. As per both the counsel for the
University and the CBSE, if a candidate appears in
an improvement examination and he is not able to
better his performance, that candidate can still
seek admission by presenting his earlier mark
sheet. If such a situation is acceptable, then how
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can the University refuse to accept the better of the
two marks obtained by a candidate."
20. Reiterating the above view, in Nikhil Sharma (supra) another Ld.
Single Judge held:
"22. Having examined the aforesaid bye-laws and
the decision of this Court in the case of Poonam
(supra), I find that the role of the Respondent No.
1/University was only to examine the results as
provided by the CBSE, as it is only the CBSE
which conducted the qualifying exam, based on the
results whereof the Respondent No.1/University
could determine whether a candidate meets the
eligibility criteria or not. In my considered
opinion, Respondent No.1/University cannot be
allowed to go behind the marksheets issued by the
CBSE or for that matter any other Board holding
the qualifying exam. In view of the admitted
position, that as per the CBSE both the
Petitioner's marksheets are valid, the University
cannot by introducing an instruction in its
admission brochure, nullify the result of the
candidate, which continues to be valid as per the
CBSE since the candidate was merely given a
chance to improve his result by taking an
improvement exam. Learned counsel for the
Respondent No. 1/University has not disputed the
position that the result of the Petitioner's initial
exam held in 2015 does not become invalid merely
because he appeared in the improvement
examination in 2016. I find that on the other hand,
the position which emerges from a perusal of the
bye-laws of the CBSE is that in such a situation,
where a candidates appears for an improvement
exam, his result/marksheet of the original
examination remains fully valid.
23. Even though the learned counsel for the
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Respondent No.1/University has laid great
emphasis on the fact that the said Instruction had
clearly put the student to notice that only the result
of the improvement examination would be
considered, since it was a part of the admission
brochure pursuant to which the Petitioner had
applied for admission, I find merit in the
submission of the learned counsel for the
Petitioner that the said instruction virtually
nullifies the policy of CBSE for holding of
improvement exam. In my considered opinion, it is
not at all open to the Respondent No.1/University
to override the decision of CBSE and treat the
result and marksheet of the original examination
in which the Petitioner had appeared as invalid,
merely because he appeared in an improvement
exam. There can be no doubt about the settled
legal position that Respondent No. 1/University
has full autonomy in respect of academic matters
and the Courts ought not to interfere with the
academic standards set up by educational
institutions. However, the issue here is slightly
different. While Respondent No.1/University was
fully justified in prescribing a particular eligibility
criteria for admission and the same ought not to be
interfered with lightly by the Court, the present
case shows that the University seeks to ignore the
result of the Petitioner's initial examination, which
continues to be valid as per the CBSE and based
on which the Petitioner has been declared as
having passed in each subject of the Class 12th
exam. Thus, it is not the eligibility criteria for
admission but the manner in which the Respondent
No. 1/University is insisting on ignoring a valid
class 12th result and marksheet issued by CBSE,
which is being examined by this Court. This action
of the Respondents is wholly unfair, arbitrary and
cannot be sustained. Instruction No. 17 issued by
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Respondent No. 1/University is not only arbitrary
and contrary to the CBSE bye laws, but is also
discriminatory and unfair.
...
29. Before I conclude, it would also be appropriate
to deal with the various decisions relied upon by
the learned counsel for the Respondent No.
1/University in support of her plea that the
condition in the admission brochure is binding on
the students. While there can be no doubt that the
conditions in the admission brochure are binding
on both the students and the Respondent No.
1/University, the Respondent No. 1/University
cannot introduce such criteria in the admission
brochure that are contrary to or inconsistent with
the directions/rules/regulations of the various
statutory/government bodies, including CBSE. The
effect of Instruction 17 is that it virtually
challenges the result declared by the CBSE, which
alone is
competent to decide whether the Petitioner had
obtained the requisite marks in his Class 12
exams. Furthermore, in the case of an
improvement examination the aforesaid instruction
seeks to invalidate the first result, which result the
CBSE has unequivocally declared to be valid in its
bye-laws. Therefore, such an instruction in the
admission brochure is wholly arbitrary, illegal and
cannot be sustained."
21. Thus, as per the CBSE's Bye-law no. 44, insofar as Improvement
examinations are concerned, the CBSE issues marks-sheet only for the
subject where the student takes the improvement exam and not a
consolidated marks-sheet for all the subjects taking into account the
previous year's scores. Thus both the mark-sheets issued by the CBSE are
valid. It is left to the student to rely upon whichever scores he/she wishes.
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Neither marks nor marks-sheet is forfeited. There is logic in this approach.
The very purpose of Improvement examination as per Cl. 44(i) of the
Bye-law is to give an opportunity to the student to improve the score.
Improvement examinations are not meant to punish a student for taking the
said exam. It is meant to encourage a student who wishes to aspire for better
academic growth or career prospects to study better and give another shot at
the examination to improve his marks. Thus, in a case where the student
scores better in the Improvement examination, reliance can be placed on the
same. In the same breath, if a student scores lesser, the earlier marks where
he/she had scored better is not taken away. The legal position in respect of
the Bye-laws relating to Improvement examinations of the CBSE, being now
well-settled, does not require re-visiting by this Court.
22. The question that now arises is whether the CBSE's scheme which
was approved by the Supreme Court should be extended to improvement
candidates. There are various reasons why the students would give
improvement examinations. The concept of improvement examination by its
very terminology means that a student is trying to improve the score which
he or she has earlier obtained so as to increase his percentage and to better
his or her prospects for further studies. Improvement scores in examinations
would enable the students to meet the extremely high cut-offs for admission
to premier institutions in the country where the difference in percentages is
as low as 0.1%. Improvement examination scores may enable students to
satisfy conditions imposed by Universities in India and abroad.
23. The general purpose of examinations is to evaluate students for their
academic standards and their academic capability. Improvement
examinations also have the same purpose. They are usually opted for by
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students by making sacrifices of an academic year or by putting in extra
effort even while pursuing another course or while working. The purpose
being of improvement, the candidate ought to be given the benefit of the
better score, which he or she may achieve in the improvement examinations.
24. In the present case, the Petitioner has scored the following marks in
his Class XII examination given in 2019 when he appeared for the first time.
Subject Marks scored
Physical Education 86
25. In four subjects, he registered to appear for improving his scores. The
purpose which the Petitioner has expressed is that he would like to study in
the premier institutions of the Delhi University which have very high
cut-offs marks as to be eligible for admission. For the said purpose, the
Petitioner in fact sacrificed one full academic year only to focus on his
studies and to improve his scores. The improvement examination which he
had to take was in four subjects. However, he was only able to appear in
three subjects, as the fourth paper i.e. Business Studies was cancelled due to
the Covid-19 lockdown. The following are the scores which he achieved in
the three subjects, for which he gave improvement examinations:
Subject Marks Marks in
scored Improvement
In 2019 exam
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Education
Business Studies 95 Cancelled
26. The scores which he has achieved show that in two of the
examinations he improved considerably and in one examination, he scored
lesser. In the third examination i.e., Economics, where he scored lesser, the
student is obviously entitled to rely upon his earlier score which he had
achieved in 2019. The Petitioner is also stated to have applied for
re-evaluation in the said subject. That is however not the concern of this
Court in the present petition.
27. The decision taken by the CBSE on 9 th July 2020 in respect of
Improvement examinations reads as under:
"MINUTES OF THE MEETINGS OF THE
RESULT COMMITTEE FOR SECONDARY
SCHOOL (CLASS X) & SENIOR SCHOOL
CERTIFICATE (CLASS XII) EXAMINATION,
2020 HELD ON 09.7.2020 AT 4.30 PM AT
PREET VIHAR, DELHI
Following Members attended the meeting:
1. Shri Manoj Ahuja, IAS Chairman, CBSE
2. Shri Santosh Yadav, IAS Commissioner
Kendriya Vidyalaya Sangathan, New Delhi
3. Shri Vipin Kumar, IAS Commissioner Navodaya
Vidyalaya Samiti
4. Shri Binay Bhushan, IAS
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Director of Education
5. Mrs. Saroj Bala Sain,
Addl. Director of Education (Schools) Directorate
of Education Delhi
6. Shri Arumugam Joint Commissioner
Navodaya Vidyalaya Samiti
7. Dr. (Smt.) V Vijaylakshmi
Joint CommissionerKendriya Vidyalaya Sangathan
8. Dr. Sanyam Bhardwaj
Controller of Examinations CBSE
...........
ITEM V: TO CONSIDER DECLARING THE
RESULT OF CANDIDATES WHO WERE TO
APPEAR FOR IMPROVEMENT OF
PERFORMANCE
Members were informed that above category of
candidates also appear for the examinations
conducted by the Board in February/March each
year, both for Class XII & X. ln 2020, out of the
candidates registered, 4499 candidates were
registered for Improving their performance in
improvement category in class-XII. Examinations
of some subjects were conducted and some were not
conducted. Candidates applied in Improvement
Category have appeared in the examinations
conducted by the Board. The issue related to
declaration of result of these candidates was
discussed in detail and thereafter Committee
resolved as under:
After deliberations and analysing the situation
Committee resolved as under:
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All candidates who have applied for appearing for
Improvement of Performance following action be
taken:-
(i) their result of the subjects in which they
have appeared be declared; and
(ii) In remaining subjects they may be
permitted to appear in the forthcoming
examination to be conducted for Compartment
candidates of 2020, if conducive OR in
February/March, 2021."
28. As per the above, the only option for the Petitioner is to appear in the
Business Studies examination whenever it is next conducted by the CBSE in
2020 or in February-March, 2021. The Petitioner submits that as per the
Assessment Scheme he ought to be awarded the average of the best two
scores and appearing in the examination ought to be only an option. This
Court has to consider whether the Petitioner has to only appear in the
examination as per CBSE's decision which may be conducted or would he
be entitled to the benefit of the Assessment Scheme which was approved by
the Supreme Court?
29. As per the said Scheme, for regular students who appeared in more
than three subjects, the average of the best three performing subjects was to
be awarded for the cancelled examination. In the case of the students who
appeared only in three subjects, the average of the best two performing
subjects was to be given. If this formula is applied in the case of the
Petitioner, who has appeared in three examinations, he would be entitled to
average of the marks in the two best-performing subjects i.e. the average of
the score in papers English Core and Accountancy.
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30. This would give a considerable advantage to the Petitioner in his
Business Studies paper which was cancelled i.e. instead of the earlier score
of 95 marks he would now be entitled to the average of his score in English
and in Accountancy which would be much higher.
31. The student having sacrificed one full year and also having improved
his scores in two of the subjects to a much higher level than what he had
scored in the previous year, in the opinion of the Court, there is no reason as
to why he should be treated differently from the regular candidates. An
improvement student is equally a victim of the pandemic just like a regular
student. In the case of an improvement student like the Petitioner, the
cancellation leads to a greater loss in as much as his entire effort and hard
work for the last one year has been put to naught. The pandemic has affected
one and all. If students have been able to appear in few examinations and for
no fault of theirs, one of the examinations is getting cancelled, they should
be able to score the average of their improvement scores in the improvement
examination as per the scheme of the CBSE which has been approved by the
Supreme Court. Thus, the Petitioner ought to be given benefit under the
Scheme. Considering the submission of Mr. Bansal that there are 4,500
students who have given the improvement examination, there is no reason
why improvement students should be treated any differently than the regular
students since the pandemic has put them also to considerable disadvantage.
Accordingly, it is held that the Assessment Scheme approved by the
Supreme Court would also be applicable to Improvement students. Such
students would also be entitled to avail of the scores as per the Scheme or
appear for the optional examination whenever it is held by the CBSE. Let
the corrected marksheet be issued to the Petitioner within a period of one
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week from today.
32. In case, any student's score is reduced in the improvement
examination, by applying the said scheme, the said students would have the
benefit of the legal position as set out in the judgments of Poonam (supra)
and Nikhil Sharma (supra), i.e., they would be able to rely on the better of
the scores. Insofar as the CBSE is concerned, the CBSE would apply the
assessment scheme for release of the marksheets in the case of all
improvement candidates in respect of their cancelled examination as well.
33. Let the consolidated mark sheet reflecting the scores in the
Improvement examinations for all four subjects i.e., English Core,
Economics, Business Studies and Accountancy after applying the
Assessment Scheme dated 25th July 2020, be released within a week.
34. The Court records its appreciation for the Amicus Curiae and the ld.
Counsels for the parties for the assistance rendered. Petition is allowed in the
above terms.
PRATHIBA M. SINGH
JUDGE
AUGUST 14, 2020
Rahul/A
(Corrected and released on 18th August, 2020)
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