CWP No.20567 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.20567 of 2009 (O&M) Decided on : 23-02-2011 Prateek Singh ....Petitioner VERSUS Central Board of Secondary Education and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. S.K.Monga, Advocate for the petitioner Mr. Aseem Aggarwal, Advocate for Mr. Harsh Aggarwal, Advocate for respondent no.1. MAHESH GROVER, J CM no. 2736 of 2011 Allowed as prayed for. CWP no. 20567 of 2009 The petitioner has filed the instant petition praying for quashing of order dated 17.12.2009 (Annexure P-5) and also praying that a writ in the nature of Mandamus be issued directing Central Board of Secondary Education to issue the roll no. to the petitioner for the examination for class 12th to be conducted in March, 2010 and also to permit the petitioner to conclude his course for the sessions 2009-10 pertaining to this class. The petitioner appeared in secondary school examination (class 10th ) conducted by National Institute (National Open School) in April, 2008, the result of which was declared on 12.6.2008 in which the petitioner cleared all the subjects except for mathematics. The petitioner thus applied for provisional admission in class 11th on the basis of certificate dated 12.6.2008 issued to him regarding his CWP No.20567 of 2009 (O&M) 2 result in the secondary school examination. The petitioner then placed reliance on bye law 42(vi) of Examination Bye-laws to press the point that he was required to clear his compartment examination in first attempt and which he did. Bye law 42 (vi) of the Examination Bye-laws is extracted herebelow:- “Bye law 42...... (i) xxxxxxxxx (vi) The candidate who is placed in Compartment in the Secondary School Examination (class X) shall be admitted provisionally to class XI till he takes in first chance Compartmental Examination to be held in July/August of that year. His/her admission shall be treated as cancelled if he/she fails to pass at the first chance Compartmented Examination.” The petitioner is being denied the benefit of further studies in class 12th on the premise that the compartment examination was cleared by him in December, 2008 whereas the bye law provides for the same to be cleared by July/August of the same year. The further ground taken up by the respondents is that according to the provisions pertaining to the completion of courses in National Open School, there is no provision for compartment and a candidate who appears in any class in the senior secondary class is to be awarded as many as 9 chances to appear in the public examination spread out over a period of five years and each and every attempt is to be considered as fresh chance as there is no concept of compartment. Reliance was placed on clause 4.3 of the prospectus which is extracted herebelow:- CWP No.20567 of 2009 (O&M) 3 “4.3 Credit Accumulation You can avail as many as nine chances to appear in the Public Examinations spread over a period of five years. NIOS will keep and accumulate your credit in particular subjects in its computer till you clear all the required subjects for certification. Avail this flexible scheme of examination to learn well and to get better results. It may, however, become necessary for NIOS to revise the syllabus of different courses from time to time and in that case the decision of NIOS will be binding.” Another objection which has been raised by the learned counsel for the respondent is that there should be a gap of two years between clearing of class 10th and 10+2 and since the petitioner cleared in December, 2008 there is evidently a period which is less than 2 years intervening between her attempt in 10th class and attempt in class 10+2. On due consideration of the controversy, I am of the considered opinion that the plea raised by the respondents is without any merit. The petitioner concededly appeared in the secondary school examination in June, 2008 and in the process cleared examination of all the subjects except for maths for which examination was conducted in September, 2008 and which the petitioner cleared in the first attempt. The result of this exercise was however declared in December, 2008. Therefore, it would be erroneous to say that merely because the petitioner had not completed/cleared the examination of the subject in which he had not achieved required result in July/August of the same year, hence, the same is to be construed as a violation of bye law 42(vi). The contention has to be rejected straightway CWP No.20567 of 2009 (O&M) 4 as it is not the fault of the petitioner that the examination was conducted in September and the result was declared in December. Such interpretation as sought by the respondents would do violence to the language of the bye law 42(vi). The emphasis is not on month of July or August rather emphasis of this provision is that a candidate should clear the examination in first attempt and the very first opportunity that the petitioner got was availed of by him successfully. The next contention that the learned counsel for the respondent has raised is that was pertaining to clause 4.3 of the prospectus of the National Open School to say that there is no provision of compartment and each attempt taken by a candidate is to be construed as to be a fresh attempt. I am not in agreement with this contention as well for the simple reason that the clause emphasized the grant of as many as nine opportunities to a candidate appearing in National Open School. The ostensible reason is to encourage the children who do not have opportunity to go to regular schools to participate in the education process and that is the reason that nine opportunities have been liberally granted to such desirous students. It cannot be construed to say that merely because a student falters in one subject he has to be burdened with a fresh chance in the entire examinations. It has to be limited to the very subject to which he or she falters and thus merely because word compartment does not find mention in the clause 4.3 of the prospectus and merely because there is lack of nomenclature to that effect would not alter the situation. The candidate appearing in open school examination vis-a-vis one who appears in regular school has advantage of clearing the compartment examination in one attempt. CWP No.20567 of 2009 (O&M) 5 Likewise, the Court is not enamoured of the last contention raised by the respondents that there should be a gap of two years intervening in attempt of class 10 and 10+2 examination. What is to be understood is that incumbent who reaches a threshold of class 12 ought to have successfully completed class 10th and 11th in regular courses. Period between a compartment exam and declaration of result cannot be concluded to consider the period of two years between class 10th and class 12th. The idea is to rule out any short cuts. If the facts of the case are to be seen then the petitioner has successfully completed 10th and 11th class before approaching the threshold of class 12th and merely because one of the compartment examination which he had taken in September, 2008 and the result of which was declared in December, 2008 would not mean that the period of two years is to be construed from December, 2008. The result obviously would relate back to the class and the original examination which the petitioner had taken in June, 2008. This Court has already expressed this view in decision rendered in CWP No.162 of 2010 titled as Raj Pal vs. Central Board of Secondary Education and others decided on 19.1.2011 while relying upon the observations of Hon'ble Supreme Court rendered in Central Board of Secondary Education and another vs. Gaurav Mishra and others 2000(9) SCC 530. Hence, the petition is allowed and in view of the fact that the petitioner has since cleared her class 12th examination a certificate for the said class shall be issued to her forthwith by the respondents subject to his returning the provisional certificate. February 23, 2011 (Mahesh Grover) rekha Judge