Punjab-Haryana High Court
Lakshya vs Central Board Of Secondary ... on 7 July, 2023
Neutral Citation No:=2023:PHHC:085939
CWP-7533-2022 -1- 2023:PHHC:085939
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(229)
CWP-7533-2022
Date of decision: - 07.07.2023
Lakshya
....Petitioner
Versus
Central Board of Secondary Education and another
.....Respondents
CORAM : HON'BLE MR. JUSTICE VIKAS BAHL
Present:- Mr. Puneet Kumar Bansal, Advocate
for the petitioner.
Mr. Beant Singh Seemar, Advocate
for the respondents.
****
VIKAS BAHL, J. (ORAL)
1. Present writ petition has been filed under Article 226 of the
Constitution of India for the issuance of a writ in the nature of mandamus
directing the respondents to release the result of the petitioner of Class-XII
for the year 2021 as the result has been withheld and shown in the
category of N.E. (Not Eligible) as per certificate dated
03.08.2021/23.02.2022 (Annexure P-6) issued by the respondent-Board.
Further prayer has been made for quashing Clause 42(v) of Central Board
of School Examination (hereinafter referred to as 'CBSE') Bye-laws, as
amended vide notification dated 01.02.2018 (Annexure P-7). In effect the
petitioner is challenging certificate (Annexure P-6) vide which the result
of the petitioner of Class XII has been shown in the category of 'not
eligible' by the respondent-Board.
2. Pleaded case of the petitioner in the writ petition is that the
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petitioner was a student of Shri Bala Ji Sr. Sec. School VPO Kalinga
Bhiwani, Haryana, which is a school affiliated to CBSE and in the Class X
examination which were held in the year 2019, the petitioner cleared five
subjects and had compartment in the subject of mathematics. The result of
Class X dated 06.05.2019 has been annexed as Annexure P-1 with the writ
petition. It is further the case of the petitioner that he was admitted in
Class XI in Shri Bala Ji Sr. Sec. School and the petitioner appeared in the
examination for the subject of mathematics in which he had a
compartment and result for the same was declared on 24.07.2019
(Annexure P-2) as per which also the petitioner did not pass. The
particulars of all the students who were studying in Class X1 were
submitted by the school to the respondent-Board in the month of October,
2019 and the particulars with respect to the petitioner were also submitted
and the relevant extract of the same wherein the petitioner was shown to
be at serial No.26 has been annexed as Annexure P-3. It is further the case
of the petitioner that he availed the second chance for clearing the paper in
which he had a compartment and in the same the petitioner was declared
as passed in the year 2020. The result/DMC dated 15.07.2020, regarding
the same has been annexed as Annexure P-4 with the present writ petition.
It is the case of the petitioner that in the meantime he was promoted to
Class XII and thereafter migration certificate dated 01.07.2021 was also
issued and that he had appeared in the Class XII examinations, but his
result was withheld and he was put in the category of N.E. (Not Eligible)
as per the result dated 03.08.2021/23.02.2022 (Annexure P-6). It is stated
that the petitioner made inquires and learnt that he has been put in the
category of 'Not Eligible' on the ground that he had passed the
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compartment in the second chance and not in the first chance and the same
was in violation of the amended Clause 42(v) of the CBSE Examination
Bye-laws which has been annexed as Annexure P-7 and as per which, it is
stipulated that a candidate who is placed in compartment in the Secondary
School Examination (Class-X) shall be admitted provisionally to Class XI,
but he would be required to pass the compartment in the first chance
which is to be held in July/August and in case, he does not clear the
subject in which he has compartment in the first chance, then, his
admission would be cancelled. In the present writ petition, the said clause
is also sought to be challenged.
3. Learned counsel for the petitioner has submitted that a
perusal of above-said Clause 42 would show that sub-clause (i) stipulates
that a candidate who has been placed in compartment may reappear at the
compartmental examination which is held in July/August and is also to be
given a second chance in March/April next year and could further avail a
third chance in July/August of the succeeding year. It is submitted that
Clause 42 sub-clause (v) requires the petitioner to pass the compartment
examination in the first chance and the said condition is arbitrary and
against law, inasmuch as, once a person has been given three chances to
clear the compartment so as to save him from repeating Class X, the same
number of chances should be given to clear the compartment so as to save
him from repeating Class XI. It is further submitted that at the time of
Class-XII examination, the petitioner had cleared the Class X
compartment examination, although, not in the first chance and thus, his
result should not have been withheld.
4. Learned counsel appearing for the respondents, on the other
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hand, has vehemently opposed the present writ petition and has prayed for
its dismissal. It is submitted that the examination bye-laws of CBSE
which are sought to be challenged now are of the year 2018, which is prior
to the date on which the petitioner had given the exams for the Class X. It
is also submitted that as per Clause 7.4 of the Examination Bye-laws,
admission to Class XI in a school is open to a student only in case he has
obtained minimum Grade 'D' in at least five subjects (excluding additional
6th subject) and in the present case, the petitioner does not have Grade 'D'
in five subjects excluding 6th additional subject and thus, is not entitled to
have been admitted to Class XI as per the said clause. It is further
submitted that however Clause 42(v) of the Examination Bye-laws
provides that the provisional admission can be granted to a student subject
to his/her clearing the compartmental examination in the first chance. The
said bye-laws have not been challenged by the petitioner before appearing
for the Class X examinations. It is submitted that apart from the fact that
the petitioner is estopped from challenging the said bye-laws, the said
bye-laws are absolutely legal and have been framed to maintain a certain
standard of education. It is submitted that the same are universally
applicable to all the students and there is no discrimination in its
applicability to the students belonging to the same class. It is further
submitted that in case a student is placed in compartment in Class X, then,
the provision stipulates that he would be provisionally admitted to Class
XI and would be granted one opportunity to clear the compartment
examination to be held in July/August of that year and in case, the student
clears the compartment examination in July/August of that year in the first
chance, then, he would continue in Class XI. It is stated that while framing
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these clauses, the CBSE in order to maintain educational standards
thought it prudent not to give more than one chance for confirming of the
provisional admission given in Class XI. The second and third chance
which were given under sub-clauses (i) and (ii) of Clause 42 of the
Examination By-laws are only to save a student from not repeating Class
X, but the same cannot be extended to permit a student to get provisional
admission in Class XI confirmed. In support of his argument, reliance has
been placed upon the judgment of the Hon'ble Supreme Court in case
titled as 'State of Maharashtra Vs. Vikas Sahebrao Roundale', reported
as 1992(4) SCC 435, to contend that slackening the education standards
would be detrimental to society and would also create a breeding ground
for corruption and feeding source for indiscipline. It is submitted that in
today's time every student is trying to score high percentages and the
students who have compartment in Class X and are unable to clear the
said compartment in the first instance should not be permitted to continue
in Class XI as, in case, they are permitted to continue in Class XI, then,
the same would result in weakening academic standards. It is submitted
that in the present case, the petitioner could not clear the compartmental
examination of Secondary School in his first attempt held in July, 2019
and as per the examination bye-laws, his admission was to be cancelled by
the school, but however, the petitioner, in connivance with the school,
concealed the said fact and gave a wrong declaration in the registration
form for Senior Secondary Examinations and in the registration form for
Class 10+2 by stating that the petitioner was eligible and thus, illegally
obtained the admission card for appearing in Class 10+2 examinations.
Reference has been made by the learned counsel for the respondents-
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CBSE to Annexure R-1/2 to show that the petitioner had in the column
which required him to mention the details of the year in which the
petitioner had passed Class X, the petitioner had stated "2019". The same
is false, inasmuch as, in the year 2019 the petitioner was placed in
compartment, as he had not cleared the examination for the subject-
mathematics. Even with respect to Class 10+2 examinations, the same
false statement was made and the petitioner was able to get the roll
number issued for Class 10+2 examinations. It is submitted that the said
document Annexure R-1/2 is duly signed by the petitioner and it has
specifically been mentioned in the said document that the details have
been filled up after thoroughly checking the same and in case any mistake
is detected before or after the result, then, the petitioner would be solely
responsible for the same. It is submitted that apart from the said false
statement, there is also active concealment on the part of the petitioner
while filling up form (Annexure R-1/2), inasmuch as, there was no
mention that in the year 2019 the petitioner was placed in compartment. It
is submitted that the case of the petitioner deserves to be dismissed solely
on the ground of concealment and false statement and since even the
school had connived with the present petitioner, inasmuch as, the said
document was also signed by the Principal of the school, show cause
notices have been issued to the school, copies of which are annexed as
Annexure R-1/3 and Annexure R-1/4. It is submitted that the school has
not been impleaded as a party in the present petition which further
substantiates the connivance between the petitioner and the school. It is
further submitted that a perusal of the result card (Annexure P-1) would
show that the petitioner had scored 3 marks in theory in mathematics and
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had a total of 21 marks and had got Grade 'E' in the said subject. It is
submitted that even in the other subjects, the petitioner had only scored
Grade 'D2/D1' and had thus scored very less marks even in the other
compulsory subjects. It is further submitted that in the first compartment
examination the petitioner had scored only one mark in theory and had
scored 18 marks in practical and got a total of 19 marks and the same
clearly shows that the petitioner was not earnest & sincere towards his
studies at that point in time. It is submitted that any sympathy extended
towards the petitioner would set a bad precedent.
5. This Court has heard learned counsel for the parties and has
perused the paper-book.
6. The undisputed facts in the present case are that the petitioner
had appeared in Class X exams conducted by CBSE in the year 2019 and
had secured the following marks: -
MARKS OBTAINED POSITIONAL
GRADE
Sub Subject Theory I.A.
Code
English LNG & Forty Two D2
184 024 018 042
LIT.
002 Hindi Course-A 038 018 056 Fifty Six D1
041 Mathematics 003 018 021 Twenty One E
086 Science 013 020 033 Thirty Three D2
087 Social Science 033 020 053 Fifty Three D1
Additional subject
Hind. Music Vocal Seventy D1
034 002 075 077
Seven
A perusal of the same would show that in the subject of
Mathematics, the petitioner had scored 3 marks in theory and 18 marks in
practical and in total 21 marks and was thus given Grade 'E' in the said
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subject and even in the other compulsory subjects, the petitioner had
secured only Grade 'D2/D1'. As per Clause 7.4 of the Examination By-
laws of CBSE, admission to Class XI is open to a student who has
obtained a minimum Grade 'D' in at least 5 subjects (excluding the 6th
additional subject) and since the petitioner in the present case had not got
Grade 'D' in five subjects excluding additional subject, the petitioner was
not entitled to be admitted/promoted to Class XI. Clause 7.4 is reproduced
herein below:-
"7.4 Admission to Class-XI in a School shall be open to such a
student who has: -
(a) Obtained minimum Grade-D in atleast 5 subjects
(excluding the 6th additional subject) under Scholastic Area A as per
the Scheme of Studies and a Qualifying Certificate/Gradesheet-cum-
Certificate of Performance at the Secondary School (Class-X)
Examination conducted by this Board/School affiliated to this Board;
(b) Has passed an equivalent examination conducted by any
other recognized board of Secondary Education/Indian University and
recognised by this Board as equivalent to its secondary school
examination."
Clause 7.4(b) is admittedly not applicable in the present
case.
7. Clause 42(v) of the Examination Bye-laws of CBSE provided
that a student who has been placed in compartment in Class X should be
provisionally admitted to Class XI, subject to his passing the subject in
which he had a compartment, in the first chance, in the compartmental
examinations which were to be held in July/August of that year. The
petitioner in view of the said Clause 42(v) of the Examination Bye-laws of
CBSE was provisionally admitted to Class XI by the school and the said
admission in view of the said regulation was thus subject to his clearing
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the compartmental examination in the first chance. The petitioner availed
the said chance, but failed to clear the exam and a perusal of the result
card dated 24.07.2019 (Annexure P-2) would show that the petitioner
secured only one mark in theory and since he had 18 marks in practical,
thus, the total marks that the petitioner scored in mathematics were 19,
which were even lesser than the marks he had secured in the said subject
in Class X Board examination. Clause 42(v) of the Examination Bye-laws
of CBSE further stipulates that in case a candidate is not able to clear the
subject in which he had compartment in the first chance, then, his/her
provisional admission to Class XI would stand cancelled and thus, in view
of the same the school should have cancelled the provisional admission
given to the petitioner. Instead of doing the same, the school forwarded
the details of the students including that of the present petitioner for
registering the said students for Class XI/10+2 by making false statements
and concealing material facts. The information with respect to every
student bore the signature of that student and was apparently supplied by
the student themselves under their signature and was forwarded by the
school and the same have been annexed as Annexure R-1/2 along with the
written statement filed by the respondent-Board. An extract of the said
document has also been annexed as Annexure P-3 by the petitioner in the
present writ petition. A perusal of Annexure R-1/2 (running page 40 of the
paper-book) would show that with respect to Class XI, a specific column
required the candidate to mention the details of the year, roll number etc.
of passing the Secondary Board Examination. The petitioner had
mentioned the year '2019' in the said column, although, he had never
cleared Class X in the year 2019 as the year when the petitioner had
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cleared the mathematics exam, in which he had compartment in the year
2019 was 2020. It is a settled position, which is not disputed that a
candidate is considered pass in Class X after he/she has cleared all the
subjects. The date on which the entry based on the information supplied
with respect to Class XI was made was 15.10.2019 and thus the said
information supplied was apparently false. The petitioner had signed the
said document, which is also apparent from Annexure R-1/2 (at page 41 of
the paper-book). A similar false statement was also made while getting
registered for Class 12th as, in the said document also (at page 41 of the
paperbook), it was mentioned that Class X examination had been cleared
in the year 2019. The said document was also signed by the petitioner and
the said documents specifically contained an undertaking that the
petitioner had checked all the details and that in case any mistake was
detected before or after the declaration of the result, the petitioner would
be responsible for the same and the petitioner in connivance with the
school, by giving the false statement, succeeded in wrongly getting the
roll number for the Class 10+2 examinations, although, as per the bye-
laws prevalent at the relevant time, provisional admission of the petitioner
to Class XI should have been cancelled by the school. It is the case of the
respondent-CBSE Board that they discovered the false statement and
concealment made by the petitioner only while preparing the result of the
petitioner for class 10+2 and thus, in the result, the petitioner was put
under the category 'Not Eligible' for the Senior Secondary examinations
(10+2 Class). It is further the case of the respondent-Board that the school
was also in connivance with the petitioner as the Principal had signed the
said documents and the same had been forwarded by the school and thus,
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show cause notices dated 11.03.2022 and 08.04.2022 (Annexures R-1/3
and R-1/4) had been issued to the school. To the specific averments made
in the writ petition with respect to concealment and false statement made
by the petitioner, no replication has been filed to counter the same. As has
been stated herein above, an extract of the said document (Annexure R-
1/2) has also been annexed in the writ petition as Annexure P-3. Even a
perusal of Annexure P-3 would show that the information with respect to
the year of passing of the Class XI exam has been given as "2019". No
explanation has been given in the writ petition as to why false information
had been provided. This Court, on the basis of above-said facts and
circumstances, is of the view that there is false representation and active
concealment on the part of the petitioner while filling up the documents
(Annexure R-1/2) and thus, on the said ground alone, the present writ
petition deserves to be dismissed.
8. From a perusal of Clause 7.4 of the Examination Bye-laws of
CBSE which has been reproduced herein above and also from the facts of
the present case, it is apparent that the petitioner was not entitled to be
admitted in Class XI. The only clause referred to by both the parties which
provides for provisional admission is Clause 42(2) of the amended
Examination Bye-laws, which clause now after much delay is sought to be
challenged in the present writ petition.
9. Clause 42 of the Amended Examination Bye-laws of CBSE
including Clause (v), is reproduced herein below: -
"42. Compartment Examination for Secondary/Senior
School Certificate Examination
42 (i) (b) & (c), 42(ii) (b), 42(v)
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(i) A candidate placed in compartment may reappeared at the
compartmental examination to be held in July/August same
year and may avail himself/herself for the second chance in
March/April next year and may further avail himself/herself for
the third chance at the compartmental examinations to be held
in July/August of that year.
(ii) A candidate who does not appear or fails at one or all the
chances of compartment shall be treated to have failed in the
examination and shall be required to reappeared in all the
subjects at the subsequent annual examination of the Board
as per syallabi and courses laid down for the examination
concerned in order to pass the examination.
(iii) Syallabi and Courses for the Compartmental candidates in
March Examination shall be the same as applicable to the
regular candidates of full subjects appearing in the March
examination.
(iv) For subjects involving internal Assessment, in case the
candidate has passed in Internal Assessment, he/she shall
appear only on theory part and previous Internal Assessment
marks will be carried forward.
(v) The candidate who is placed in Compartment in the
Secondary School Examination (Class-X) shall be admitted
provisionally to Class XI till he passes the first chance
Compartmental Examination to be held in July/August of
that year. His/her admission shall be cancelled if he/she fails
to pass at the first chance Compartmental Examination."
10. The petitioner in view of the above-said sub-clause (v) was
provisionally admitted to Class XI. Since, the petitioner did not pass the
subject in which he had compartment at the first chance and rather,
secured lesser marks than he had secured in the board examination, the
admission of the petitioner to Class XI should have been cancelled by the
school as is specifically provided in the above-said sub-clause (v). The
petitioner in collusion with the school had forwarded false information of
him having cleared Class X examinations in the year 2019 and thus, by
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suppressing material facts, got the roll number for Class 10+2
examinations. When the respondent-Board found out the same, they
rightly made an entry of 'Not Eligible' in the result certificate (Annexure
P-6) issued to the petitioner and the said act of the respondent authority
was in consonance with the bye-laws and deserves to be upheld and the
petitioner does not deserve any relief in the present writ petition.
11. Challenge to Clause 42(v) of the Examination By-laws of
CBSE is completely devoid of merit and deserves to be rejected in view of
the following reasons: -
(i) No rule, regulation, bye-law or law has been referred to by the
learned counsel for the petitioner to show that the petitioner had
any legal right to be given more than one chance for confirming
his provisional admission to Class XI.
(ii) Clause 7.4 as well as Clause 42(v) of the Examination Bye-laws
were in force on the date when the petitioner had given the
examination for Class X. No challenge was made to any clause by
the petitioner prior to him giving the said examination. It is after
being admitted in Class XI in view of the said Clause 42(v) of the
Examination Bye-laws and after the petitioner had failed to
comply with the condition mentioned in the said sub-clause that
the said sub-clause is sought to be challenged at this belated stage
and thus, as per settled law, the principle of estoppel operates
against the petitioner.
(iii) In the prayer clause of the writ petition, challenge is not to a
condition contained in Clause 42(v) of the Examination Bye-laws
of CBSE, but to the whole sub-clause. In case, the relief sought in
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the prayer clause of the writ petition is granted and the entire
Clause 42(v) of the Examination Bye-laws is set aside, then, the
same would not in any way further the case of the petitioner as it is
only the said sub-clause which provides for provisional admission
in Class XI, in spite of the student(petitioner in the present case)
having a compartment in the main examination and setting aside of
the same would result in the petitioner not even being eligible for
provisional admission in Class XI in view of Clause 7.4 of the
Examination Bye-laws of CBSE (to which no challenge has been
made).
(iv) During the course of arguments, it has been submitted by learned
counsel for the petitioner that the condition incorporated under
clause 42(v) of the Examination Bye-laws, with respect to
provisional admission being subject to the compartmental
examination being cleared, in the first chance, should be replaced
and a candidate should be provided with multiple chances. The
said argument deserves to be rejected as in case the same is
accepted, then, the same would in effect amount to rewriting the
said clause. No law or judgment has been cited by the learned
counsel for the petitioner to show that the Court, more so in the
present facts and circumstances has the power to rewrite a clause
formulated by an expert body in the field. The Division Bench of
the Bombay High Court in Writ Petition No.5896 of 2020 titled as
'Mansi Vs. Union of India through Ministry of Human Resource
Development, New Delhi and others', reported as 2021(1) ALL
MR 446, while considering a challenge to Circular dated
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12.08.2020 and Clause 41.2 of the Examination Bye-laws issued
by CBSE, whereby, the candidates, who did not appear in the main
examination held in February/March, 2020 as regular candidates
were excluded from appearing in the compartment examination,
observed that the bye-laws cannot be struck down by Court on the
ground of unreasonableness merely because the Court thinks that
it does not incorporate certain provisions which, in the opinion of
the court, would have been fair and wholesome, nor the Court can
say that a bye-law is unreasonable merely because it has carved
out certain categories and also cannot be invalidated by the Court
on the ground of unreasonableness and that the body entrusted
with the powers to make bye-laws must ordinarily be presumed to
know what is necessary, reasonable, just and fair. While making
the said observations, the Division Bench had also taken into
consideration the judgment of the Hon'ble Supreme Court passed
in case titled as "Maharashtra State Board of Secondary and
Higher Secondary Education and another Vs. Paritosh
Bhupeshkumar Sheth', reported as 1984 (4) Supreme Court
Cases, wherein, the Hon'ble Supreme Court had observed that it
was not within the legitimate domain of the Court to determine as
to whether the purpose of a statute can be served better by
adopting any policy different from what has been laid down by the
Legislature or its delegate. It was further observed that it was
within the competence of the Board, to apply its mind and decide
matters of policy relating to the conduct of the examination and
that the Court should not substitute its own views in relation to
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academic matters. Relevant portion of the judgment of the
Division Bench of the Bombay High Court in Mansi Vs. Union of
India (supra) is reproduced herein below: -
"22. Mr. Deshpande, the learned counsel for respondent No.2
CBSE has referred to decision in the case of Maharashtra State
Board of Secondary and Higher Secondary Education and another
Vs. Paritosh Bhupeshkumar Sheth, reported in 1984 (4) Supreme
Court Cases, wherein the the Hon'ble Supreme court has held as
under:
"The question whether a particular piece of delegated
legislation- whether a rule or regulation or other type of statutory
instrument- is in excess of the power of subordinate legislation
conferred on the delegate has to be determined with reference only to
the specific provisions contained in the relevant statute conferring the
power to make the rule, regulation, etc. and also the object and
purpose of the Act as can be gathered from the various provisions of
the enactment. So long as the body entrusted with the task of framing
the rules or regulations acts within the scope of the authority
conferred on it, in the sense that the rules or regulations made by it
have a rational nexus with the object and purpose of the statute, it is
not within the legitimate domain of the Court to determine whether
the purpose of a statute can be served better by adopting any policy
different from what has been laid down by the Legislature or its
delegate. Legislature and its delegate are the sole repositories of
the power to decide what policy should be pursued in relation to
matters covered by the Act for its efficacious implementation. Any
drawbacks in the policy incorporated in a rule or regulation will not
render it ultra vires and there is no scope for interference by the
Court unless the particular provision impugned before it can be said
to suffer from any legal infirmity, in the sense of its being wholly
beyond the scope of the regulation-making power or its being
inconsistent with any of the provisions of the parent enactment or in
violation of any of the limitations imposed by the Constitution.
None of the above vitiating factors are shown to exist in the
present case and therefore, Regulation 104(3) cannot be held to be
ultra vires. Instead of confining itself to a consideration whether the
impugned regulation fall within four corners of the Act and
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particularly Section 36 thereof, the High Court erred in embarking
upon an investigation as to whether the prohibition against the
disclosure and inspection of answer books and other documents
imposed by Regulation 104(3) would, in practice, effectively serve
the purpose of the Act ensuring fair play to the examinees.
Having regard to the provisions of section 36, especially
clauses (c), (d), (f) and (g) of sub-section(2) thereof, as also those of
Section 19(f) and (g), it is clear that a duty is cast on the State Board
to formulate its policy as to how the examinations are to be conducted,
how the evaluation of the performances of the candidates is to be
made and by what procedure the results are to be finalised, compiled
and released. It was perfectly within the competence of the Board,
rather it was its plain duty, to apply its mind and decide as a matter
of policy relating to the conduct of the examination as to whether
disclosure and inspection of the answer books should be allowed to
the candidates, whether and to what extent verification of the result
should be permitted after the results have already been announced
and whether any right to claim revaluation of the answer book
should be recognized or provided for. All these are matters which
have an intimate nexus with the objects and purpose of the enactment
and are, therefore, within the ambit of the general power to make
regulations conferred under sub-section (1) of Section 36. In addition,
these matters fall also within the scope of clause (c), (f) and (g) of
sub-section (2) of the said section.
The Hon'ble Supreme Court further held that:
"The Court should be extremely reluctant to substitute its own
views as to what is wise, prudent and proper in relation to academic
matters in preference to those formulated by professional men
possessing technical expertise and rich experience of actual day-to-
day working of educational institutions and departments controlling
them. It will be wholly wrong or the curt to make a pedantic and
purely idealistic approach to the problems of this nature, isolated
from the actual realities and grass root problems involved in the
working of the system and unmindful of the consequences which
would emanate it a purely idealistic view as opposed to a pragmatic
one were to be propounded.
23. Having regard to the landmark judgment of the Hon'ble
Supreme Court in the case of Maharashtra State Board of
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Secondary and Higher Secondary Education and another Vs.
Paritosh Bhupeshkumar Sheth (supra), the legal position is now well
established that even a bye law cannot be struck down by Court on
the ground of unreasonableness merely because the Court thinks
that it goes further than "is necessary" or that it does not
incorporate certain provisions which, in the opinion of the court,
would have been fair and wholesome. The Court cannot say that a
bye-law is unreasonable merely because it has carved out certain
categories. It cannot be said that the byelaw and circular under
challenge are manifestly unjust, capricious, inequitable or partial in
its operation. It cannot be invalidated by the Court on the ground of
unreasonableness. The responsible representative body entrusted
with the powers to make bye-laws must ordinarily be presumed to
know what is necessary, reasonable, just and fair.
24. The experts in the education field have framed the policy
and accordingly, made amendment in the Examination Bye-laws of
CBSE and on that basis, impugned circular has been issued, which
provides categories of students who are eligible for compartment
examination.
xxx xxx xxx xxx xxx
There is no scope for interference. We have sympathy for the
petitioner-student who could not appear for February-March, 2020
examination (main) because of her prolonged illness. But, we cannot
permit the petitioner to appear in compartment examination to be held
in the month of September, 2020 in view of the circular dated
12.08.2020 and the Clause 41.2 of the Examination Bye-laws. The
petitioner does not fit in the categories of candidates/ students made
in the circular and as such, we deem it fit not to exercise our
extraordinary jurisdiction by invoking Article 226 of the
Constitution of India.
27. Having regard to the above reasons, we are not
inclined to grant any relief in favour of the petitioner.
28. Writ petition stands dismissed."
In the above-said case, the petitioner could not appear as a
regular student of Class X on account of the fact that she had to
undergo surgery and was not keeping good health, which fact was
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not disputed by the respondents and the petitioner therein wanted
to appear in the compartmental examination stated to be held in
the month of September, 2020. Since the petitioner therein was not
permitted to appear in the compartment examination on the basis
of a circular issued by the CBSE and also in view of Clause 41(2)
of the Examination Bye-laws, the same were sought to be
challenged in the above-said writ petition. The Division Bench,
after making the above-said observations, dismissed the writ
petition and observed that there was no scope for interference,
even though the Court had sympathy for the petitioner therein who
could not appear for February-March, 2020 examination (mains)
because of her prolonged illness.
(v) It is not the case of the petitioner that similarly placed students are
being discriminated against by virtue of the said sub-clause and
thus, the said clause cannot be stated to be discriminatory. Clause
42(i) of the Examination Bye-laws extends a benefit to students in
order to save them from repeating Class X. Sub-clause (v) of
Clause 42 of the Examination Bye-laws is with respect to
confirmation of provisional admission granted to a student with
respect to Class XI and thus, the said two clauses have been
framed for two different purposes and the said clauses cannot be
stated to be arbitrary, illegal or in violation of law. The plea raised
by the petitioner to the effect that grant of three chances be read
into in Clause 42(v) on the ground of compassion also deserves to
be rejected as it is the settled law that where a person does not
have a legal right, then, misplaced compassion will not meet the
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ends of justice. A Co-ordinate Bench of this Court in CWP
No.14584 of 1999 titled as 'Puneet Chopra and others Vs.
Central Board of Secondary Education and another, reported as
2000(3) S.C.T. 339, after taking into consideration the submissions
made by the petitioner therein to the effect that the petitioner had
studied for one year in Class XI, reiterated the above position of
law. Relevant portion of the said judgment is reproduced herein
below: -
xxx xxx xxx xxx xxx xxx
A person only passes 10th class examination, when he clears
all the subjects. It is, therefore, rightly thought that only one chance
should be given to pass the examination in the month of
July/August, 1999. Admittedly, the petitioners failed to pass their
examination in the first attempt. They still remained compartmental
candidates. Thus, they cannot make any grievance in this regard.
7. On behalf of the petitioner it was submitted that these
rules will not apply to the petitioners because at that time they were
studying in Class 10. The said argument is fallacious. The amendment
was effected in the year 1998. It would apply to all the candidates
who passed Class 10. The petitioners only took the examination in
Class 10 in March/April, 1999. The rules were already enforced. It
would, therefore, apply with all its vigour to the petitioners.
xxx xxx xxx xxx xxx xxx
9. Confronted with that position it had been pointed that since
petitioners have almost studied for one year in Class 11, their
academic session should not be disturbed. In this regard the plea is
totally devoid of any merit. The reason being that if a person does not
have a right, then misplaced compassion will not meet the ends of
justice. It would only be defeated. The Supreme Court in the case of
Guru Nanak Dev University v. Parminder Kr. Bansal, AIR 1993
Supreme Court 2412, in this regard held :-
"From the series of orders that keep coming before us in
academic matters, we find that loose, ill-conceived sympathy
masquerades as interlocutory justice exposing judicial discretion to
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the criticism of degenerating into private benevolence. This is
subversive of academic discipline, or whatever is left of it, leading to
serious impasse into academic life. Admission cannot be ordered
without regard to the eligibility of the candidates. Decisions on
matters relevant to be taken into account at the interlocutory stage
cannot be deferred or decided later when serious complications might
ensue from the interim order itself. In the present case the High
Court was apparently moved by sympathy for the candidates than by
an accurate assessment of even the prima facie legal position. Such
orders cannot be allowed to stand. The Courts should not embarrass
academic authorities by itself taking over their functions."
Same was the view expressed subsequently in the case of
Central Board of Secondary Education v. Nikhil Gulati, AIR 1998
Supreme Court 1205. It was stated :-
"Occasional aberrations such as these, whereby ineligible
students are permitted, under Court orders, to undertake Board and/or
University examinations, have caught the attention of this Court many
a time. To add it further, the Courts have almost always observed that
the instance of such aberrations should not be treated as a precedent
in future. Such casual discretion by the Court is nothing but an
abuse of the process; more so when the High Court at its level itself
becomes conscious that the decision was wrong and was not worth
repeating as a precedent. And yet it is repeated time and again.
Having said this much, we hope and trust that unless the High Court
can justify its decision on principle and precept, it should better
desist from passing such orders for it puts the 'Rule of Law' to a
mockery, and promotes rather the 'Rule of Man'."
As pointed and referred to above, the petitioners did not have a
legal right. Since they did not have the legal right, the above said
argument based on compassion must lose significance.
10. For these reasons, the writ petitions being without merit
must fail and are dismissed. The parties are left to bear their own
costs.
Petitions dismissed.
In the above-said case, prayer was made for quashing of the
instructions of the CBSE Board, on account of which, the
petitioner therein had been denied to continue studying in Class XI
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for having failed to clear the compartmental examination in the
first chance with respect to Class X. The said instructions were
challenged being illegal, unlawful, arbitrary and discriminatory
and being in violation of the principles of natural justice. Co-
ordinate Bench of this Court, after taking into consideration the
arguments raised by the parties, observed that a student passes
Class X when he/she clears all the subjects and thus, it has been
rightly stipulated by the CBSE-Board to give only one chance for
clearing the exam, in which, a student has a compartment and once
the said student had failed to pass the said exam in the first
attempt, then, the said student would remain as a compartmental
candidate and could not be promoted to Class XI. Coordinate
Bench placed reliance on judgments of the Hon'ble Supreme Court
in case titled as 'Guru Nanak Dev University vs. Parminder Kr.
Bansal', reported as AIR 1993 Supreme Court 2412 and in case
titled as 'Central Board of Secondary Education vs. Nikhil
Gulati', reported as AIR 1998 Supreme Court 1205 and after
considering the same, the writ petitions filed by the students were
dismissed. The facts of the abovesaid case are very similar to the
facts of the present case.
(vi) In case the benefit of second chance as well as third chance is
extended to a student, who has been provisionally admitted to
Class XI, then the same would create an anomalous situation,
inasmuch as, the third chance under sub-clause (1) of Clause 42 of
the Examination Bye-laws to save the candidate from having to
repeat Class X would be given in the month July/August of the
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next year, whereas, the annual examinations are to be held in
March/April and thus, a student who has not even cleared
examinations of Class X would be eligible for appearing for the
examinations Class XI. Sub-clause (v) of Clause 42 of the
Examination Bye-laws stipulates that the compartmental
examination be cleared in July/August of the same year in the first
chance and thus, even for all practical purposes, is legal and valid.
Thus, keeping in view the above-said facts and circumstances,
this Court is of the opinion that Clause 42(v) of the Examination Bye-laws
of CBSE is legal and valid and deserves to be upheld.
12. The Hon'ble Supreme Court of India in Vikas Sahebrao
Roundale's case (supra) has held as under: -
"xxx xxx xxx xxx xxx xxx
12. Article 51A enjoins every citizen by clause (h) to
develop the scientific temper, humanism, the spirit of inquiry and
reform and clause (j) enjoins as the fundamental duty to strive
towards excellence in all spheres of individual and collective activity
so that the nation constantly rises to higher levels of endeavour and
achievement; (a) respect of national flag and national anthem; (e) to
promote harmony and spirit of common brotherhood amongst all the
Indian people transcending religious, linguistic and regional or
sectional diversities to renounce practice derogatory to the dignity of
woman; (f) to value and preserve rich heritage of our composite
culture, etc. are some of the basic duties with which the budding
students need to be inculcated and imbibed. They should be sowed in
the receptive minds in their formative periods so that they take deep
roots at maturity. The teacher needs, not only the training at the
inception, but also periodical orientations in this behalf so that the
children would reap the rich benefit thereof. xxx xxx xxx The
disregard to statutory compliance would amount to letting loose of
innocence and unwary children. xxx xxx xxx xxx Slackening
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the standard and judicial fiat to control the mode of education and
examining system are detrimental to the efficient management of the
education. The directions to the appellants to disobey the law is
subversive of the rule of law, a breeding ground for corruption and
feeding source for indiscipline. The High Court, therefore,
committed manifest error in law, in exercising its prerogative power
conferred under Art 226 of the Constitution, directing the appellants
to permit the students to appear for the examination etc."
Any interference by this Court in favour of the petitioner
would send a wrong message and would result in lowering of educational
standards.
13. Keeping in view the above-said facts and circumstances, the
present writ petition being sans merit deserves to be dismissed and is,
accordingly dismissed.
14. Before parting with the present judgment, it would be
relevant to note that on 18.05.2023, this Court had passed the following
order: -
"Learned counsel for the petitioner prays for a short
adjournment to get instructions on the aspect as to whether the
petitioner is ready to take admission in 11th class.
Learned counsel for the respondents is also directed to get
instructions with regard to said aspect.
Adjourned to 26.05.2023.
To be taken up at 02:45 PM.
(VIKAS BAHL)
JUDGE
May 18, 2023"
15. In pursuance of the above-said order, learned counsel for the
respondent-CBSE has got instructions to the effect that in case the
petitioner is ready to take admission in Class XI, then, the respondent-
CBSE would have no objection to the said course of action.
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16. Learned counsel for the petitioner, however, prayed that he
wanted to press the writ petition on merits.
17. Although, the present writ petition has been dismissed, but it
would be open to the petitioner to seek admission in Class XI to which the
respondents-CBSE would have no objection, but the same would be
subject to the norms formulated by the State and the applicable Rules &
Regulations.
18. In view of the above, the present writ petition is dismissed
with the above-said observations.
( VIKAS BAHL )
July 07, 2023 JUDGE
naresh.k
Whether reasoned/speaking? Yes
Whether reportable? Yes
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