Delhi High Court
Devasri Bali vs Central Board Of Secondry ... on 26 August, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 25th August, 2022
Pronounced on: 26th August, 2022
+ W.P.(C) 11775/2022 & CM APPL. 35097/2022
DEVASRI BALI ..... Petitioner
Through: Ms. Anusuya Salwan, Mr. Bankim
Garg, Mr. Shakaib Khan, Mr.
Rachit Wadhwa and Ms. Nikita
Salwan, Advocates
versus
CENTRAL BOARD OF SECONDRY EDUCATION & ANR
..... Respondents
Through: Mr. Chetan Sharma, ASG with Mr.
Rupesh Kumar, Ms. Pankhuri
Shrivastava, Mr. Amit Gupta, Mr.
Saurabh Tripathi, Mr. Rishav
Dubey, Mr. Sahaj Garg and Ms.
Neelam Sharma, Advocates for R-
1/CBSE
Mr. Rajesh Gogna, CGSC with Mr.
Devvrat Yadav G.P., Mr. Vidit
Jain, Mr. Digvijay and Ms. Priya
Singh, Advocates for UOI
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
CHANDRA DHARI SINGH, J.
1. The instant writ petition under Article 226 of the Constitution of
India has been filed by the Petitioner assailing the Class XII Board results
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YADAV
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declared by the Central Board of Secondary Education (hereinafter
referred to as the "CBSE") on 22nd July 2022, praying inter alia as under:
"(a) Issue a Writ of Mandamus directing the
Respondents to declare the result of the Petitioner in
terms of the Circular No. ACAD-51/21 dated 05.07.2021
factoring in the Special Scheme of Assessment which
mandates equal weightage of the theory papers for Term-
1 and Term-2 while computing the result;
(b) Issue a Writ of Certiorari quashing the circular no.
CBSE/CE/PPS/2022 dated 23.07.2022 which stipulates
30 percent weightage to Term -1 and 70 percent
weightage to Term - 2 for computing the results;"
FACTUAL MATRIX
2. The matter has arisen out of the facts as detailed hereunder:
a. Petitioner is a student aged 18 years who was studying at
Delhi Public School, Vasant Kunj and had appeared in
the Class XII CBSE Board Examination for the
Academic Session 2021-2022.
b. Respondent No. 1 is the CBSE represented through its
Chairperson and Respondent No. 2 is the Union of India
represented through its Secretary.
c. On 5th July 2021, the CBSE came up with a "Special
Scheme of Assessment for Board Examination Classes X
and XII for the Session 2021-22" bearing Circular No.
Acad-51/2021.
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d. Vide the said circular, it was conveyed that the CBSE has
decided to conduct the 2022 Board examinations in two
Terms i.e. Term-I & Term-II. The said scheme inter alia
provided for "Assessment/Examination as per different
situations" wherein four different scenarios were detailed
and the consequent mode/manner and weightage of
Term-I and Term-II examinations were notified.
e. It was further stated therein that in case the situation of
the pandemic improved and students were able to come
to schools or centres for taking the exams, then the Board
would conduct Term I and Term II examinations at
schools/centres and the theory marks will be distributed
equally i.e. 50%-50%, between the two exams for
preparation of the Results.
f. On 14th October 2021, CBSE issued a circular bearing no.
CBSE/CE/EXAM-2021-22/ notifying that all
examinations (Term-I and Term-II) will be conducted in
an offline mode.
g. Term-I examinations for Class XII Board were held in
schools/centres in a phased manner from 16th November
2021 to 30th December 2021.
h. On 19th March 2022, the result of Term-I was declared.
CBSE on the same date issued a circular bearing no.
CBSE/CE/2021 regarding the performance of the
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students of Class-XII in Term-I exams. The Circular inter
alia stated that the weightage of Term-I and Term-II will
be decided at the time of declaration of Term-II result
and accordingly, the final performance will be calculated.
i. On 5th April 2022, the CBSE from its official/verified
twitter handle (CBSE HQ|@cbseindia29) declared a
notification, purported to be issued by the Board, as fake.
The said notification described as being fake inter alia
pertained to the weightage of Term-I and Term-II Board
exams in the final results and mentioned that the result
will be calculated by taking 30 per cent from Term-I
exams and 70 per cent from Term-II exams.
j. Term-II examinations for Class XII Board were held in
schools/centres in a phased manner from 26th April 2022
to 15th June 2022.
k. On 22nd July 2022, the CBSE declared the results for
Class XII Board Examinations. This was followed by a
Press Release bearing Ref. No. CBSE/CE/RESULTS-
XII/2022 titled "Declaration of Results of Class XII,
2022", wherein it was specified that the competent
committee of the Board had fixed 30% weightage of
Term-I and 70% weightage of Term-II in Theory for
calculation of Result.
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l. On 23rd July 2022, another letter was issued by the CBSE
to the Principals of Affiliated Schools regarding the 30%
weightage of Term-I and 70% weightage of Term-II
while computing the result.
m. The petitioner applied for admission to engineering
colleges and appeared at the BITSAT-2022 entrance
examinations for getting admission into the Birla Institute
of Technology and Science, Pilani (hereinafter referred to
as "BITS, Pilani").
n. As per the petitioner, she qualified the BITSAT 2022
entrance examination but, due to the changed weightage
formula for calculation of 12th Board marks, she failed to
meet the criteria of minimum 75% marks in the three
subjects, namely - Physics, Chemistry and Mathematics
(hereinafter, collectively referred as "PCM"). Therefore,
the petitioner is unable to secure admission to BITS,
Pilani.
o. The petitioner is thus aggrieved by the modification of
earlier announced 50%-50% weightage formula to 30%-
70% weightage assigned to theory marks scored in Term-
I and Term-II for preparation of Result of the 12th CBSE
Board Examinations.
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YADAV
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SUBMISSIONS
Petitioner's Submissions:
3. Ms. Anusuya Salwan, learned counsel appearing on behalf of the
petitioner made the following submissions:
a. The Petitioner, Devasri Bali was a student of Delhi
Public School, Vasant Kunj, New Delhi and had
appeared for the Class 12th Board examinations
conducted by the Respondent No. 1/CBSE in the
Academic Session 2021 - 22. The results of the Class
12th Board examinations for the session 2021 - 22 were
declared on 22nd July 2022 by the Respondent No. 1.
The aforesaid results were declared by the Respondent
No. 1 in discordance with the Special Scheme of
Assessment for Board Examinations for the Session
2021-22 dated 5th July 2021.
b. The Scheme of Assessment by the Respondent No. 1 was
notified on 5th July 2021, prior to the Term - 1 and Term
- 2 examinations, and specific circumstances were
mentioned therein, laying down the contingencies
regarding conduct of examination due to the pandemic
situation and the respective weightage of marks.
c. The said circular itself highlights the fact that the
evaluation scheme as proposed was based on extensive
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deliberations and consultations with various schools and
stakeholders across the country.
d. As per the relevant portion of Clause 6 of the said
Circular, it was provided that in case the situation of the
pandemic improved and students are able to come to
schools or centres for taking the exams, then the Board
would conduct Term I and Term II examinations at
schools/centres and the theory marks will be distributed
equally between the two exams.
e. It is pertinent to note that since both the Term - I and the
Term - 2 examinations were held at schools/centres,
therefore, equal weightage ought to have been given to
both the Terms in compliance of the Special Scheme of
Assessment notified vide circular dated 5th July 2021.
f. On account of the arbitrary and unlawful change in the
scheme of assessment and the computation of result
thereto in the manner detailed hereinabove, the Petitioner
is unable to meet the minimum percentage criterion of
seventy-five percent (75%) in PCM, despite her having
cleared the qualifying entrance examination i.e. BITSAT
2022 for admission to BITS, Pilani.
g. The arbitrary and unfair change in evaluation scheme by
CBSE has resulted in violation of legitimate expectation
of the Petitioner that the evaluation of the Petitioner
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should have been in accordance with the circular dated
5th July 2021 and has thereby led to the violation of
rights under Article 14 and Article 21 of the Constitution
of India. The Respondent No. 1 is also estopped from
changing its stance especially when the exams were
conducted as per the Original Scheme by the rule of
estoppel.
h. The change in weightage is against the well-established
principle that the change in the criteria for evaluation in
the middle of the course of the selection process is bad in
law. In this regard reliance is placed on Maharashtra
State Road Transport Corporation and Ors. v Rajendra
Bhimrao Mandve and Ors [MANU/SC/0737/2001],
Madan Mohan Sharma and Ors. v. State of Rajasthan
and Ors. [MANU/SC/7190/2008], and K. Manjusree v.
State of A.P. and Ors. [MANU/SC/0925/2008].
i. Respondent No.1's decision of changing the weightage of
Term I and Term II came as a surprise to the stakeholders
and the schools. The newspaper clippings and news
articles of the months of July 2022 (as annexed in
Annexure P-11 & P-12 of the writ petition) highlight the
fact that even the heads of Schools/Principals were
shocked at such arbitrary and retrospective change in the
weightage of Board examination.
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YADAV
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j. The circular dated 19th March 2022 wherein it has been
stated that the weightage of the Term-I and Term-II
marks would be decided at the time of result, is arbitrary
in nature since deciding the weightage at the time of
declaration of result is similar to appearing in an
examination of 100 marks with 10 questions and the
individual marks allotted to each question being decided
at the time of result. This has led to changing the rules of
race once the race has ended and the results are to be
announced, and as such is outrageously arbitrary.
k. In the instant case, the Term-I exams were already held in
November-December 2021 and the Term-II exams were
held in March-April 2022. The 19th March 2022 Circular
does not annul or expressly supersede the earlier circular
dated 5th July 2021 wherein the 50%-50% weightage
formula was promulgated.
l. In the circular dated 19th March 2022, the Respondent
No.1/CBSE nowhere mentioned about the change in
weightage to the Term I and Term II exams. The said
circular only stipulated that the weightage would be
decided at the time of final result. The Petitioner could
not have anticipated such a substantive deviation at the
time of final results.
m. Despite the notification dated 19th March 2022, the
Respondent No. 1 had subsequently vide their twitter
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handle issued an advisory on 5th April 2022 clearly
declaring a circular stipulating reduced weightage of
Term-I examination to 30% to be fake and again creating
a legitimate expectation that the earlier scheme of 50%-
50% was applicable.
n. As per the CBSE, the new weightage formula was
recommended by a Committee of Experts meeting on
21st May 2022 after extensive discussion and
deliberations with academicians, school principals and
other stakeholders. However, the factum of the
recommendation regarding the new weightage formula
was kept under wraps till the day the result was
announced. This clearly shows the malicious intention of
the Board to keep the students in the dark about the
weightage formula adopted for preparation of result.
o. The improvement examination held on 23rd August 2022
does not serve the purpose of the petitioner for the reason
that the results of the said examination would be declared
any time in September 2022 and by that time, admission
to most of the colleges would be closed, thus defeating
the very purpose for which the improvement exams are
conducted.
p. There is no contradiction to the fact that results of a
number of students across India have been adversely
impacted due to the said action of the Board, however,
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the argument that if any relief in the instant case is
granted to the petitioner, it would have a catastrophic
effect on lakhs of students is false, misconceived and a
mere exaggeration.
q. Admission in colleges at the Undergraduate level in
medical, engineering, law and other streams are carried
out on the basis of performance in the competitive
entrance examinations through NEET/JEE/CLAT/CUET,
etc. In most of the cases, unlike for admission to BITS,
Pilani, the rider regarding the attainment of marks in the
12th Board Examinations to the tune of 75% marks does
not apply. In any other case, where the admission is
based on the cut-off of the 12th Board results, the
students would be able to attain admission in the
subsequent cut-off lists.
r. Reliance is placed on various judgments including
Sukriti & Ors. V. CBSE & Anr. (MANU/SCOR/
03759/2022), Gaurav Bhairava & Ors. v. National
Testing Agency & Anr. (MANU/SCOR/ 67056/2022) to
request that a judgment in personam be passed to allow
the relief to the petitioner, thereby obliterating any
probability of adversely impacting the marks of other
students.
s. In arguendo, it is stated that both the Term exams had
equal portion of syllabus, while for Term-I students got 9
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months for preparation for Term-II only 3 months were
granted, and the students while appearing for Term-II
were further burdened by the pressure of competitive
examinations for undergraduate examinations. The new
weightage formula has failed to take into account the
actual burden qua the two Terms and has arbitrarily
increased the weightage of Term-II from 50% to 70%,
whereas reduced the weightage of Term-I from 50% to
30%. As such, the uncertainties of pandemic have already
wreaked havoc on the life of the students. This arbitrary
decision taken by the Board added to the woes of
students including the petitioner.
t. On compassionate grounds and on equity, the petitioner
be granted relief by allowing the instant petition and
direction to the Respondent No. 1 CBSE to prepare the
result of the petitioner by applying the original weightage
formula (50%-50%) to the scores attained in Term-I and
Term-II, and to upload the amended mark sheet on the
DigiLocker so as to enable the petitioner to furnish her
mark sheet to BITS, Pilani for her admission.
Respondent‟s Submissions:
4. Per Contra, learned ASG appearing on behalf of the Respondents
vehemently opposed the prayers made by the Petitioner and made the
following submissions:
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a. CBSE is an autonomous organisation under the Ministry
of Education, Government of India tasked with
supervision and regulation of education, as well as
conducting examinations across affiliated schools. The
Board has a pan-India as well as international presence -
with more than 26000 schools affiliated with the Board in
India and having affiliated schools in more than 25
countries. The Board's functions inter alia also include
granting affiliation to the schools for conduct of Class X
and XII Examination.
b. In light of the impact of the unprecedented COVID-19
pandemic on the credibility of the Board's assessment of
students while issuing certificate of performance for
academic qualification, deliberations were made by the
stakeholders over the alternative ways to conduct the
Board Examinations for the academic session 2021-2022.
Accordingly, the Respondent No. 1 CBSE came up with
a special scheme for the academic session 2021-22
through Circular No. Acad/51 dated 5th July 2021 which
was addressed to all the affiliated schools of CBSE, as
per which it was decided to conduct examinations in two
Terms viz. - Terms I and II.
c. As per the said scheme, the syllabus was rationalised and
each Term exam was allotted 50% of the entire syllabus
for evaluation. Clause 6 of the said Circular refers to the
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YADAV
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various scenarios giving various possibilities under which
assessment could be done depending upon the stated
eventualities. The relevant situation-action scheme
prescribed therein is as under:
"Situation:
In case the situation of the pandemic
improves and students are able to come to
schools or centres for taking the exams.
Action:
Board would conduct Term I and Term II
examinations at schools/centres and the
theory marks will be distributed equally
between the two exams."
d. Due to the fact that the pandemic situation eased out, the
Respondent No. 1 was able to conduct the examinations
for both the terms successfully. After the conduct of the
Term-I examination, Principals of large number of
schools affiliated to CBSE informed that since the
Objective type assessment was done for the first time and
there was no preparation time for this format of
examination, hence, students faced many difficulties and
thus, the Term-I weightage should be reduced to the
minimum.
e. Respondent No. 1 issued a Circular dated 19th March
2022 through which marks secured by students in Term-I
Examination were informed. Clauses 6 and 7 are relevant
for the present purpose, which are reproduced hereunder:
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"(6) Being Term-I only, no Marks Sheet cum
Passing Certificate is being issued now. Only
one Mark Sheet cum Passing Certificate will
be issued after the Term-II examination to
have parity with the previous results. This will
comprise of only total marks of both the
Terms as per weightage decided of Term-I
and Term-II examinations.
(7) The weightage of Term-I and Term-II will
be decided at the time of declaration of Term-
II result and accordingly, the final
performance will be calculated."
f. It is evident from the aforementioned portion of the
circular that the weightage of Term-I and Term-II was to
be decided at the time of Term-II final result and
accordingly the final performance would be calculated,
and therefore no legitimate expectation arises nor does
any estoppel apply.
g. Even otherwise, if a legitimate expectation is considered
to have arisen, such an expectation cannot be said to be
giving rise to any Fundamental Right, especially when in
matters pertaining to assessment the Hon'ble Supreme
Court has upheld full autonomy to the certifying
authority.
h. Reliance is placed on various judgments of the Supreme
Court including Ramchandra Murarilal Bhattad v. State
of Maharashtra (2007) 2 SCC 588, Ganpath SIngh
Gangaram Singh Rajput v. Gulbarga University, (2014)
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3 SCC 767, and Sanchit Bansal & Anr. v. Joint
Admission Board & Ors. (2012) 1 SCC 157 to submit
that the Court should refrain from substituting its own
view in a policy matter especially when an expert
committee has decided the same.
i. As regards the reliance of the petitioners on the fake
circular being busted by the CBSE on social media is
concerned, it is pertinent to note that the clarification
made was regarding the issuance of such a circular and
was not a comment on the contents of the same.
j. Thereafter, a Committee of Experts was constituted to
obtain the views on the weightage to be given for both
the Terms I and II. The meeting of the Committee was
convened on 21st May 2022 at the CBSE Headquarters,
and after detailed deliberations, majority of the members
of the committee recommended that the weightage for
Term-I (Theory) should be around 30% and for Term-II
(Theory) should be 70%. As far as Practical was
concerned, it was recommended that equal weightage to
both Term I and Term II be given. The said
recommendations were accordingly accepted by the
CBSE.
k. Accordingly, on the basis of the recommendation of the
Committee, the Competent Authority decided to prepare
the final result for Class XII and Class X by giving the
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weightage to Term-I at 30% (for Theory Papers) and to
Term-II at 70% (for Theory Papers). However, for
calculation of practical marks, equal weightage was
decided to be given for both Terms. It is on this basis that
the Respondent has declared Class XII result on 22nd
July 2022. Therefore, there is no iota of arbitrariness and
discriminatory practice adopted by the Respondent No.
1/CBSE.
l. Reliance placed by the Petitioner on the judgment passed
in Sukriti (supra) does not hold any ground since the
matter was decided on a different plane altogether and the
same had arisen out of the Assessment Policy laid out in
light of specific prayer made by the petitioners that they
were not regular students but were appearing as private
students.
m. A conjoint and harmonious reading of the three circulars
dated 5th July 2021, 19th March 2022 and 22nd July 2022
makes it crystal clear that the revised weightage formula
is valid and reasonable.
n. In view of the dynamic situation, it is submitted that
policy cannot be cast in stone, and the same was modified
from time to time in the interest of students, as per the
representations received by the CBSE from principals
from affiliated schools across the country. In any case,
there was an opportunity granted to the student to appear
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in the examination held on 23rd August 2022 for
improvement, which was not availed by the petitioner.
o. Respondent No.1 being the pace setting national board
having its presence across the globe and being known for
its assessment quality, there was a need that a realistic
result of the students should be declared in 2022.
21,09,208 students have appeared in Class X and
14,44,341 have appeared in Class XII. From the media
reports it is evident that the students are happy with the
result.
p. All the results have been prepared in accordance with the
new weightage formula for Term-I and Term-II
examinations. However, no other student except the
petitioner has approached this Court for the said relief,
which is a testimony to the fact that the decision of the
Board regarding the new weightage formula has been
correct and in the larger interest of the students.
q. Passing any orders interfering with the results prepared
would amount to an extraordinary and unprecedented
ordeal leading to a catastrophic effect that would
adversely impact lakhs of students. Therefore, equity
demands that larger public interest be taken into
consideration while adjudicating the instant petition.
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YADAV
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5. In light of the aforesaid, it is submitted that the instant petition is
devoid of merits and this Court may be pleased to dismiss the same.
6. Heard learned counsels appearing on behalf of parties at length and
perused the record.
ISSUE
7. The petitioner is aggrieved by the modification of earlier
announced 50%-50% weightage formula to 30%-70% weightage
assigned to theory marks scored in Term-I and Term-II for preparation of
Result of the 12th CBSE Board Examinations.
Percentage in PCM claimed by the petitioner:
As per original weightage formula As per new weightage formula
77% 73.33%
Impact of the said decision of CBSE:
8. The petitioner qualified the BITSAT 2022 entrance exam but, due
to the changed weightage formula for calculation of XII Board marks,
failed to meet the criteria of minimum 75% marks in XII results in the
three subjects, namely - Physics, Chemistry and Mathematics. Therefore,
the petitioner is unable to secure admission to BITS, Pilani.
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YADAV
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ANALYSIS
9. The main question for consideration is whether a legitimate
expectation has arisen due to the circulars issued by the CBSE and if so,
what remedy can be granted to the petitioner for breach of such
expectation by the CBSE.
10. For a better appreciation of the case at hand, it is pertinent to
peruse and analyse the doctrine of Legitimate Expectation as held by the
Hon'ble Supreme Court.
Doctrine of Legitimate Expectation
11. The concept of legitimate expectation owes its origin to Europe.
The statement of Lord Diplock in Council of Civil Service Unions v
Minister for the Civil Service [1985] AC 374 is regarded as envisaging
legitimate expectation extending to an expectation of a benefit.
Legitimate Expectation may arise from, either of the following
circumstances:
(i) Violation of what a person has been permitted by the concerned
authority to enjoy and which he can legitimately expect to be
permitted to continue to enjoy until he has been communicated
some rational grounds for withdrawing it on which he has been
given an opportunity to comment;
(ii) Taking away of a benefit in the future which has not yet been
enjoyed but has been promised.
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12. Legitimate or reasonable expectation may arise from an express
promise given on behalf of a public authority or from the existence of a
regular practice which the claimant can reasonably expect to continue. It
is a valuable and developing doctrine, that comes to the rescue of an
ordinary person, in case where a public authority conducts itself so as to
create a legitimate expectation that a certain course will be followed, and
the same is violated. It would be unfair if the authority were permitted to
follow a different course to the detriment of one who entertained the
expectation, particularly if he acted on it. The doctrine of legitimate
expectation is thus rooted in fairness and equity.
13. The Hon'ble Supreme Court of India in the case of National
Buildings Construction Corporation v. S. Raghunathan, AIR 1998 SC
2779 has held as under:
"The doctrine of „Legitimate Expectation‟ has its genesis in
the field of administrative law. The Government and its
departments, in administering the affairs of the country are
expected to honour their statements of policy or intention and
treat the citizens with full personal consideration without any
iota of abuse of discretion. The policy statement cannot be
disregarded unfairly or applied selectively. Unfairness in the
form of unreasonableness is akin to violation of natural
justice. It was in his context that the doctrine of „Legitimate
Expectation‟ was evolved which has today become a source
of substantive as well as procedural rights. But claims based
on „Legitimate Expectation‟ have been held to require
reliance on representations and resulting detriment to the
claimant in the same way as claims based on promissory
estoppel."
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14. The doctrine of legitimate expectations is founded on the principle
of fairness in government dealings. It comes into play if a public body
leads an individual to believe that they will be a recipient of a substantive
benefit.
15. Recently, in the case of State of Bihar And Ors. v. Shyama
Nandan Mishra, 2022 LiveLaw (SC) 449, the Hon'ble Supreme Court
held that abuse of power is one of the criteria for testing whether a public
body could retract from a prima facie legitimate expectation. It was held
therein that if the government authority induced an expectation which
was substantive, the upsetting of that expectation, through departure from
the expected course of action in the absence of compelling public interest,
would be so unfair that it would amount to abuse of power.
16. Therefore, where the substantive legitimate expectation is not ultra
vires the power of the authority, the State cannot be allowed to change
course and belie the legitimate expectation. Regularity, Predictability,
Certainty and Fairness are necessary concomitants of Government's
action and a failure to keep these commitments would permit the State's
action to be interdicted.
17. In the State of Jharkhand v. Brahmputra Metallics Ltd., Ranchi,
2020 SCC OnLine SC 968, the Hon'ble Supreme Court clarified the
difference between the concepts of promissory estoppel and legitimate
expectation. It was observed that the doctrine of legitimate expectation is
premised on the principles of fairness and non-arbitrariness in State
action. The doctrine of legitimate expectation emerges as a facet of
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Article 14 of the Constitution. On the other hand, promissory estoppel,
can be invoked if the State has entered into a private contract with
another entity but is inapplicable where a representation has been made
by the State in the discharge of its public functions. In the latter situation,
the doctrine of legitimate expectation finds its application.
18. Since, the circulars were issued by the Respondent No.1 CBSE, as
an autonomous organisation under the Ministry of Education, in
discharge of its public function, the doctrine of legitimate expectation can
be attracted against it.
19. Having dealt extensively with the doctrine, this Court shall now
delve deeper into the facts of the case at hand.
20. The CBSE, owing to the extraordinary circumstances caused due to
COVID-19 pandemic and due to the uncertainty prevailing regarding
Board examinations for the Academic Session 2021-22, on 5th July 2021
came up with a "Special Scheme of Assessment for Board Examination
Classes X and XII for the Session 2021-22" bearing Circular No. Acad-
51/2021.
21. The relevant portion regarding the Special Scheme for the Session
2021-22 in the said Circular is reproduced hereunder:
"Special Scheme for 2021-22
A. Academic session to be divided into 2 Terms with
approximately 50% syllabus in each term:
The syllabus for the Academic session 2021-22 will be
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divided into 2 terms by following a systematic approach by
looking into the interconnectivity of concepts and topics by
the Subject Experts and the Board will conduct examinations
at the end of each term on the basis of the bifurcated
syllabus. This is done to increase the probability of having a
Board conducted classes X and XII examinations at the end
of the academic session.
B. The syllabus for the Board examination 2021-22 will be
rationalized similar to that of the last academic session to be
notified in July 2021. For academic transactions, however,
schools will follow the curriculum and syllabus released by
the Board vide Circular no.
F.1001/CBSEAcad/Curriculum/2021 dated 31 March 2021.
Schools will also use alternative academic calendar and
inputs from the NCERT on transacting the curriculum.
C. Efforts will be made to make Internal Assessment/
Practical/ Project work more credible and valid as per the
guidelines and Moderation Policy to be announced by the
Board to ensure fair distribution of marks. "
22. It is evident that in a marked departure to the tradition, the CBSE,
unlike other academic sessions, decided to conduct the 2022
examinations in two Terms i.e. Term-I & Term-II.
23. Regarding the Assessment/Examination as per different situations,
the relevant portion of the Circular is extracted below:
"6. Assessment / Examination as per different situations
A. In case the situation of the pandemic improves and
students are able to come to schools or centres for taking the
exams. Board would conduct Term I and Term II
examinations at schools/centres and the theory marks will be
distributed equally between the two exams."
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24. The said scheme inter alia provided for "Assessment/Examination
as per different situations" wherein four different scenarios were detailed
and the consequent mode/manner and weightage of Term-I and Term-II
examinations were notified. It was stated therein that in case the situation
of the pandemic improved and students were able to come to schools or
centres for taking the exams, then the Board would conduct Term I and
Term II examinations at schools/centres and the theory marks will be
distributed equally between the two exams for preparation of the Results.
25. On 14th October 2021, CBSE issued a circular bearing no.
CBSE/CE/EXAM-2021-22/ notifying that all examinations (Term-I and
Term-II) will be conducted in an offline mode. Accordingly, the Term-I
examinations for Class XII Board were held in schools/centres from 16 th
November 2021 to 30th December 2021.
26. The CBSE on 19th March 2022, issued a circular bearing no.
CBSE/CE/2021/ regarding the performance of the students of Class-XII
in Term-I exams. The Circular inter alia stated that the weightage of
Term-I and Term-II would be decided at the time of declaration of Term-
II result and accordingly, the final performance would be calculated. The
relevant portion of the circular is extracted hereunder:
"(6) Being Term-I only, no Marks Sheet cum Passing
Certificate is being issued now. Only one Mark Sheet cum
Passing Certificate will be issued after the Term-II
examination to have parity with the previous results. This
will comprise of only total marks of both the Terms as per
weightage decided of Term-I and Term-II examinations.
(7) The weightage of Term-I and Term-II will be decided at
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the time of declaration of Term-II result and accordingly, the
final performance will be calculated."
27. This was followed by another clarification that was issued on 5 th
April 2022 by the CBSE from its official/verified Twitter handle (CBSE
HQ|@cbseindia29) wherein it declared a notification, purported to be
issued by the Board, as fake. The said notification, described as being
fake, inter alia mentioned that the result will be calculated by taking 30
per cent from Term-I exams and 70 per cent from Term-II exams.
28. Term-II examinations for Class XII Board were held in
schools/centres in a phased manner from 26 th April 2022 to 15th June
2022. On 22nd July 2022, the CBSE declared the results for Class XII
Board Examinations. This was followed by a Press Release bearing Ref.
No. CBSE/CE/RESULTS-XII/2022 titled "Declaration of Results of
Class XII, 2022", wherein it was specified that the competent committee
of the Board had fixed 30% weightage of Term-I and 70% weightage of
Term-II in Theory for calculation of Result.
29. It is stated that a Committee of Experts was constituted to obtain
the views on the weightage to be given for both the Terms I and II. The
meeting of the Committee was convened on 21st May 2022 at the CBSE
Headquarters, and after detailed deliberations, majority of the members of
the committee recommended that the weightage for Term-I (Theory)
should be around 30% and Term-II (Theory) 70% respectively.
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30. As per CBSE, meeting of the Result Committee was held on 21 st
July, 2022 at 3:30 pm, wherein after detailed deliberations, the
recommendations made were accepted.
31. Officer of the CBSE was present during the hearings before this
Court and assisted this Court. On the query made by this Court qua the
approval of the Minutes of the Result Committee Meeting, which has
been placed on record, the concerned officer responded that the same has
been approved by the competent authority of the Board. Upon not finding
any formal order by the competent authority enforcing the
recommendation regarding the new weightage formula, this Court was
constrained to summon the Original file, which was furnished by the
concerned officer present in the Court. However, it was disappointing to
see that only two green coloured sheets containing the notes of the
Controller of Examinations was present, and no such order made by the
Chairperson/Competent Authority accepting, enforcing and notifying the
recommendation regarding the new weightage formula was present in the
file produced. Even, the Officer present was unable to satisfactorily
answer the query of the Court in this regard.
32. In view of the above, this Court has come to the conclusion that
there is nothing on record to suggest that any such order has been passed
by the Chairperson/Competent Authority accepting, enforcing and
notifying the recommendation regarding the new weightage formula.
Accordingly, merely on the basis of the recommendation of the
Committee, the Competent Authority decided to prepare the final result
for Class XII and Class X by giving the weightage to Term-I at 30% (for
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Theory Papers) and to Term-II at 70% (for Theory Papers). In a matter of
hours, the result of lakhs of students was prepared and published the very
next day, that is on 22nd July 2022.
33. The factum of the recommendation and its acceptance was kept a
secret from public and students at large, until the fag end and on the very
date the results were declared, it was disclosed to the students. This
clearly shows the arbitrariness and lapse on the part of the Board to keep
the students in the dark about the weightage formula adopted for
preparation of final result. This tantamounts to changing the rules of race
after the race has ended and as such is outrageously arbitrary.
34. Upon perusal of the record as produced by the Respondent no.
1/CBSE, it is evident that there are glaring lapses and lackadaisical
approach adopted by the Respondent No.1/CBSE.
35. All of this does not paint a glossy picture. This state of affairs at
the CBSE is nothing but worrisome. Manifest arbitrariness at such a large
scale cannot be allowed to go on unfettered. By its conduct and
representations in public by way of circulars, the CBSE has violated the
legitimate expectation of the students, including the petitioner.
CONCLUSION
36. CBSE has a rich and glorious past. Since its humble beginning in
1929, the sapling has now grown into a gigantic banyan tree with a
number of milestones, and its outreach not only in India but also across
more than 25 countries worldwide. CBSE affiliated schools today include
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Kendriya Vidyalayas, Navodaya Vidyalayas, government schools, as well
as private schools. These affiliated schools have produced outstanding
luminaries in various fields, who have contributed significantly to the
cause of nation building. The Board's dedication and efforts to undertake
continuous and comprehensive reforms and innovations in education is
commendable. Given such a bright history, the responsibility vested and
the trust reposed in the Board is also magnified. Therefore, a greater
degree of care and caution, as well as due diligence is required on the part
of the functionaries and office bearers to ensure that due process is not
violated at the higher echelons while taking decisions that affect the lives
of lakhs of students.
37. Petitioner has not pressed the prayer for setting aside the Revised
Scheme of Weightage of Term-I and Term-II exams dated 23rd July 2022.
In the course of arguments, reliance has also been placed by the learned
counsel for the petitioner on various judgments including Sukriti & Ors.
V. CBSE & Anr. (MANU/SCOR/03759/2022), Gaurav Bhairava &
Ors. v. National Testing Agency & Anr. (MANU/SCOR/67056/2022) to
request that a judgment in personam be passed to allow the relief to the
petitioner, thereby obliterating any probability of adverse impact on the
marks of other students.
38. In view of the aforesaid, I am inclined to partly allow the instant
petition. Accordingly, the prayer for issuance of a Writ of Mandamus
directing the Respondents to declare the result of the Petitioner in terms
of the Circular No. ACAD-51/21 dated 5th July 2021 providing for the
Special Scheme of Assessment which mandates equal weightage to
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theory papers for Term-I and Term-II while computing the result is
allowed.
39. CBSE is accordingly directed to calculate and declare the result of
the petitioner as per the formula as declared in the Original Scheme dated
5th July 2021. The revised Result/mark sheet thus prepared shall be
uploaded, as expeditiously as possible, preferably within two working
days from the date of this Judgment, on the DigiLocker for ensuring
access to the petitioner.
40. As goes the popular saying - "Justice should not only be done, but
also seen to be done." In the Academic Session 2021-22, around 14 lakhs
students appeared for the CBSE Class-XII Board Examinations, whose
results have been prepared and declared in accordance with revised
weightage formula. Therefore, in the greater interest of the students at
large and to ensure that justice does not in itself become an agent of
chaos, as well as in light of the fact that the petitioner has not pressed its
prayer for setting aside of the impugned circular of revised weightage
formula, this Court is not interfering with the Revised Scheme of
Weightage of Term-I and Term-II exams dated 23rd July 2022. It is also
made clear that the petition has been partly allowed in the peculiar facts
and circumstances of the case and shall not operate as a precedent.
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41. The instant petition is partly allowed in the aforesaid terms and
accordingly stands disposed of.
42. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
AUGUST 26, 2022
Aj/@dityak.
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Digitally Signed By:DAMINI
YADAV
Signing Date:26.08.2022
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