1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. CIVIL WRIT PETITION NO.8829/2007 Miss Panna Dhariwal Versus Union of India and others Date of order ::: February 25, 2009 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr. Anil Mehta, for the petitioner Mr.A.K.Sharma with Mr.Vishnu Kant Sharma, Mr.Rizwan Ahmed on behalf of Mr.A.K.Bhandari, Sr.Advocate, for the respondents REPORTABLE BY THE COURT (1) By this writ petition, the petitioner is seeking an appropriate writ, order or direction to the respondent No.4 to issue the eligibility certificate to the petitioner of Class-XI and further the petitioner be allowed to appear in Class-XII examination of ISC-2009. (2) It is also pertinent to mention here that by virtue of interim orders of this Court, the petitioner has been allowed to appear in Class-XI and presently, she is continuing her studies in Class-XII and further on 16.2.2009, an application to allow the petitioner to appear in the practical examination of Class-XII was filed along with prayer to issue the eligibility certificate for appearing in the final examination of Class-XII of ISC-2009. On the last but two working days i.e. 20.2.2009 final arguments were heard and the judgment was reserved. 2 (3) Briefly stated, the relevant facts of the case are that the petitioner is presently student of Mayo College Girls' School, Ajmer which is affiliated with the Council for the India School Certificate Examinations (in short `the ISC'). After passing IXth standard from the said School, the petitioner could not cope with the studies of Xth Class due to health reasons and opted to give examination from the National Institute of Open Schooling (in short `N.I.O.S.') and the Rajasthan State Open School (in short `R.S.O.S.'), respondents No.2 and 3 respectively and passed out her examination of Class-X in April, 2007 (Anx.2). Thereafter, she again sought admission in XIth Class in the Mayo College Girls' School, Ajmer, which is affiliated with the I.S.C. and the said course of Class XI started from 13.7.2007. On 12.9.2007, the I.S.C. informed the Principal, Mayo College Girls' School that out of the five subjects offered by the candidate at Class-X examination of N.I.O.S. in April, 2007 (Anx.2), the Council does not accept `Word Processing' as one of the subjects for the purpose of admission in Class-XI of the I.S.C. (12), hence, the above mentioned candidate cannot be admitted to Class-XI of I.S.C. (12) on account of not fulfilling the eligibility criteria of I.S.C. (4) On 19.9.2007, the Principal of the Mayo College Girls' School wrote a letter to the I.S.C. referring the entire facts with the further mention of the fact that the Open School caters to the need of the candidates who are unable to cope 3 with the rigor of the syllabus and he understood that the Open School Certificate is accepted by all Boards. In the end, he mentioned that he would be most grateful if the Council could possibly help the petitioner who otherwise will have to waste the academic year which would have certainly adverse effect on her. He further stated that he made bold to send the request knowing that the Council has a tradition of being student friendly, with the further mention that he looked forward to hearing from the Council. (5) On 4.10.2007, the Principal Secretary to Government, School and Sanskrit Education, wrote a letter that on the one hand, the N.I.O.S. examination is recognised, on the other hand, taking of the subject of `Word Processing' the same is not being recognised. In such circumstances, admission of the petitioner may be regularised. (6) On 5.10.2007, the Council has regretted the non- acceptance of the request with the further mention of the fact that the letter of September 12, 2007 remained unchanged and the provisional admission of the petitioner must be withdrawn immediately. (7) On 10.10.2007, the Principal of the College informed the petitioner that she does not qualify to appear in the I.S.C. (XII) Examination,2009. (8) At this stage, the petitioner filed the writ petition on 12.10.2007 and an interim order was passed in her favour on 24.10.2007 allowing her to continue studies in Class XI. The 4 order dated 24.10.2007 is as follows: Order dated 24.10.2007 Issue notice. Rule is made returnable within four weeks. Meanwhile, the respondent Nos.4 &5 are directed to allow the petitioner to continue with her studies in XI class and are further directed not to relieve the petitioner from the school.” (9) After passing of the aforesaid ex parte order dated 24.10.2007, the respondent filed an application under Article 226(3) of the Constitution of India for vacation of ex parte stay order. Simultaneously, the respondent also filed an ap- plication for taking the counter affidavit on record. In the counter affidavit, it is stated that in case of the students who have passed Class-X from other Board(s) and intend to ap- pear in Class-XII ISC Examination conducted by the Council, the eligibility certificate is granted only if the candidate, apart from passing English and second language, has passed three other written subjects accepted by the Council. Such accep- tance is granted if the candidate passed the subject in Class- X the course content of which is comparable to the subject which the Council offers in Class-X. It was specifically stated that in the present case, the petitioner passed the subject `Word Processing' in Class-X and the Council has no subject in Class-X which is comparable with `Word Processing' or the course content of which is similar to `Word Processing'. It is further specifically stated that the subject with limited course content, which are vocational in nature, are not accepted by 5 the Council, more so when there is no similar subject avail- able with the Council. In the counter affidavit, the respon- dents have placed reliance on Clause B(2) of Chapter-1 and reproduced relevant portion of the same in para 3 of the counter affidavit. In the entire affidavit, the respondent No.4 has not disputed recognition of Class-X passed from N.I.O.S. However, the respondent has disputed the subject of `Word Processing', as detailed hereinabove. The aforesaid stand taken by the respondents in the counter affidavit is the same as referred in the letters dated 12.9.2007 and 6.2.2009. (10) Counsel for the petitioner has filed reply to the afore- said counter affidavit filed by the respondent No.4 i.e. Council for the Indian School Certificate Examinations and stated that before admission, the respondent No.4 never declared that any particular subject of the N.I.O.S. would not be recognised or accepted by it, and after admission, it is not open to the respondents to declare the subject of `Word Processing' as neither comparable nor similar to N.I.O.S. It is also stated in the reply that specific comparable or equivalent subject infor- mation is always declared before the admission as the same affects eligibility of the candidate and in case the reply sub- mitted by the respondent is accepted, then the same would amount to de-recognition of Class-X passed from N.I.O.S. for the purpose of admission in Class-XI of I.S.C. and that the comparison of subjects made after the admission would oper- ate retrospectively and would further result in wastage of one 6 academic year of the petitioner at the time of filing of the writ petition and presently two academic years. (11) On 12.3.2008, on the aforesaid application for vacation of the ex parte order, this Court modified the order dated 24.10.2007 which is as follows: Order dated 12.3.2008 “....In my view, since the examinations are going on therefore, in between the interim order dated 24.10.2007 need not be vacated. However,the same is modified to the following extent: “The petitioner will be allowed to continue to appear in the examination of Class 11 th provisionally and the said interim order will not create any equity in favour of the petitioner. Her result will also be subject to the decision of the writ petition”. ...”. (12) In the aforesaid facts and circumstances of the case, the petitioner is continuing her studies in Class XII and it was brought to the notice of the Court that the practical examinations are likely to commence from the next week and further the theoretical examination of Class XII will commence soon thereafter, therefore, the case was heard but in the meanwhile, efforts were made for referring the matter for relaxation to the Academic Council/Body with the further mention of the fact that any decision on the reference may not be treated as a precedent in future. On 9.2.2009, counsel for the respondent Institution shown a letter dated 6.2.2009 issued by the Additional Secretary and officiating Chief Executive Secretary, ISC whereby the respondents have refused to grant the eligibility certificate to the petitioner as the same would be a wrong precedent. The said 7 letter was subsequently filed which will be referred at appropriate place. (13) Submission of counsel for the petitioner is that having recognized the entire course of Class-X of N.I.O.S., it is not open to the respondents not to recognize particular subject during the continuation of the current session of the petitioner, by saying that the subject of `Word Processing’ is neither similar nor comparable to any of the subjects of Class-X of I.S.C. In case the same is permissible then, the entire course of the petitioner of Class-X of N.I.O.S. would stand de-recognised for the purpose of admission in Class-XI as well as Class-XII of I.S.C. without there being any publication to the said effect prior to the admission of the petitioner. Otherwise also, the orders dated 12.9.2007 and 6.2.2009 will operate retrospectively which would result in wastage of two academic years of the petitioner without there being any fault on the part of the petitioner who passed out the course of N.I.O.S. with the understanding that the course is recognized for the purpose of admission in Class-XI and Class-XII of I.S.C. In support of his submissions, counsel for the petitioner placed reliance on the judgment of Supreme Court in Guru Nanak Dev University V. Sanjay Kumar Katwal & another (JT 2008 (11) SC 543, Para 16) wherein the Supreme Court treated admission of ineligible candidate as regular admission after placing reliance on two earlier judgments of the Supreme Court in Sanatan Gauda 8 V.Berhampur University (JT 1990 (2) SC 57) and Shri Krishan V.The Kurukshetra University (AIR 1976 SC 376). (14) Submission of counsel for the respondents is that it is open to the respondent No.4 - I.S.C. to invoke the power given under Clause B(2) of Chapter-1 during continuation of the current academic session and the said power cannot be said to be unreasonable and arbitrary. In support of his submission, counsel for the respondents has placed reliance on a judgment of the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education and another V. Paritosh Bhupesh Kurmarsheth etc. (AIR 1984 SC 1543 Paras 14 and 16). (15) On the basis of the aforesaid pleadings of the parties, the crucial question is “that when a particular course is recognized, then after admission of the student in higher class, will it be open to the Institution not to recognize particular subject, which would result in de-recognition of the entire course taken by the student concerned, who has been admitted and continuing the course will not be in a position to be admitted in any other course.” (16) I have gone through record of the writ petition and further considered subsequent events and orders passed by this Court. (17) Before proceeding further, it is relevant to reproduce Clause B(2) of Chapter-1, letter dated 12.9.2007, order sheets dated 25.11.2008, 21.1.2009, decision of the 9 Committee dated 4.2.2009, letter dated 6.2.2009, order sheet dated 9.2.2009, Para 16 of the judgment of the Supreme Court in Guru Nanak Dev University V. Sanjay Kumar (JT 2008 (11) 543) referred by the counsel for the petitioner and paras 14 and 16 of the judgment in Maharashtra State Board of Secondary and Higher Secondary Education V.Paritosh Bhupesh (AIR 1984 SC 1543) relied by counsel for the respondents. The same are as under: Relevant portion of Clause B(2) of Chapter-1 “B.2(a) The eligibility of candidates who have been awarded Pass Certificates in the equivalent examination conducted by another Examining Board will be decided by the Chief Executive and Secretary of the Council. The conditions of eligibility are as follows: (i) The candidate must have been awarded a Pass Certificate in accordance with the requirements of the Board at an equivalent examination taken at one and the same sitting, and subject to provisions 2(a)(ii) and 2(b). (ii) The candidate must have obtained pass marks in accordance with the regulations of the Board in (i) English (ii)a Second Language (as distinct from English) and (iii) three other written subjects, accepted by the Council. (emphasis supplied) (iii) After obtaining a Clearance Certificate from the Council, Heads of Schools may admit provisionally in Class XI, a candidate who has been awarded a Pass Certificate by another Examination Board. They must submit to the Council immediately on granting provisional admission certified true copies of the Statement of Marks issued to the candidates by the Examining Board. If the candidate is eligible, the Council will issue an Eligibility Certificate to the Head of the School concerned in respect of the candidate.” Letter dated 12.9.2007 ““Council for the Indian School Certificate Examinations Pragati House, 3rd Floor, 47-48, Nehru Place, New Delhi-110505 No.N/XII-Eli/2007-2009 September 12, 2007 10 RA006 The Principal MayoCollege Girls' School, Mayo Link Road, Ajmer 305 008 Rajasthan Dear Principal, This is in reference to your letter of August 30,2007 regarding the eligibility of candidate Panna Dhariwal for admission to Class XI of ISC-2009 Examination. Kindly note that out of 5 subjects offered by the candidate at the SSC Examination of the NIOS, New Delhi. The Council does not accept `WORD PROCESSING' as one of the written subjects for the purpose of admission to Class XI of the ISC (12) course. Therefore, concerned candidate would thus be considered to have passed the Class X Examination in only four written subjects of the external examination including English and Hindi. However, the eligibility requirement of ISC Course for issuing of eligibility is: The candidate must have passed the Class X Examination from a recognised Examination Board in five written subjects at one and the same sitting of the external examination including English (compulsory subject), a Second Language (as distinct from English) and three other written subjects accepted by the Council. Hence, the above mentioned candidate cannot be admitted to Class XI of the ISC (12) course, as she does not fulfil the eligibility criteria of ISC. Yours faithfully, Sd/- P.J.George Assistant Secretary” Order sheet dated 25.11.2008 “Heard learned counsel for the parties. During the course of final arguments, it transpires from the pleadings and the submissions of the parties that although Class X Certificate is recognized by the respondents, but they are contesting the eligibility of the petitioner for Class XI as well as further study of Class XII for the reason that the subject `Word Processing’ is not similar to any subject available for the study in the Council. (emphasis supplied) On raising query whether there is any provision for relaxation for referring the matter to the Academic Council/Body,Shri A.K.Sharma, counsel for the 11 respondents seeks two weeks’ time. Time as prayed for is allowed. Put up this matter for further arguments on 12.12.2008, and in the meanwhile, the petitioner shall be allowed to continue her study in Class XII.” Order sheet dated 21.1.2009 “Counsel for the respondent-Institution submits that as directed by this Court on 25.11.2008, he has sought instruction only on the issue of relaxation and as per the instruction received by him there is no provision for relaxation. In the order dated 25.11.2008, the query was not only relating to relaxation but was referring the matter to the Academic Council/Body. But Mr.A.K.Sharma submits that by inadvertence referring the matter to the Academic Council/Body was not processed. He is granted two weeks’ time to process the same and place the decision of the Academic Council/Body. (emphasis supplied) The Academic Council/Body shall also consider the fact that any decision on the reference may not be treated as a precedent in future. Put up on 09th of February, 2009.” Relevant portion of the Decision of the Committee dated 4.2.2009 in pursuance to which the order dated 6.2.2009 was passed after reconsideration. “...2. In the present case, the candidate passed the subject of Word Processing in Class X and the Council has no subject in Class X which is comparable to `Word Processing' or the course content of which is similar to `Word Processing'. The subjects with limited course content and which are basically vocational in nature are not accepted by the Council, more so when there is no similar subject available with the Council. In these circumstances, the said subject of `Word Processing' was not been accepted by the Council and therefore Eligibility Certificate for pursuing studies in Class XI was not granted to the candidate. (emphasis supplied) 3. In view of the above position, it is clear that the Council has acted within the scope of its Examination Regulations while deciding the aspect of grant of Eligibility Certificate to Ms.Panna Dhariwal. In fact, the decision of the Council that Ms.Panna Dhariwal is not 12 being granted Eligibility Certificate was conveyed vide letter dated 12.9.2007 (The school having applied for it on 31.8.2007) but still she has chosen to continue her studies in contravention of the Regulations. The Committee is therefore of the view that a non eligible candidate should not be granted a Eligibility Certificate and allowed to sit for the Class XII ISC examinations, thereby setting a wrong precedent and acting in violation of the Examination Regulations. The decision is taken accordingly...” (emphasis supplied) Letter dated 6.2.2009 “Council for the Indian School Certificate Examinations Pragati House, 3rd Floor, 47-48, Nehru Place, New Delhi-110505 No.CC/CISCE/2009 6 February 2009 Mr.Ajit Kumar Sharma Advocate 20, Jai Jawan Colony II, Tonk Road, Jaipur 302 018 Rajasthan Dear Sir, Sub: In the matter of S.B. Civil Writ Petition No.8829/2007 Ms.Panna Dhariwal V/s.Union of India & ors. This refers to your letter dated January 31, 2009 sent along with the copy of the order dated 21.01.2009 passed by the Hon'ble High Court on the subject noted above. Keeping in view of the urgency of the matter, the matter was placed before a three member special committee constituted by the undersigned to look into the matter, which met on the 4th February 2009. A copy of the report submitted by the committee is enclosed herewith for your ready reference. The committee came to the conclusion: “that a non eligible candidate should not be granted a Eligibility Certificate and allowed to sit for the Class XII ISC Examinations, thereby setting a wrong precedent and acting in violation of the Examination Regulations. The decision is taken accordingly.” (emphasis supplied) The Hon'ble Court may kindly be informed accordingly. Sd/- (Geery Arathoon) Addtiional Secretary and Officiating Chief Executive & Secretary” 13 Order sheet dated 9.2.2009 “Counsel for the respondent-Institution has shown a letter dated 06th of February, 2009 issued by Additional Secretary and Officiating Chief Executive & Secretary, Council for the Indian School Certificate Examinations whereby the respondents have refused to grant Eligibility Certificate to the petitioner as the same would be a wrong precedent. Counsel for the respondent-Institution seeks 3 days time to place on record the said letter along with an application. Put up on 18.02.2009, for final disposal. Para 16 of the judgment of the Supreme Court in Guru Nanak Dev University V. Sanjay Kumar JT 2008(11) 543 “16. However, on the peculiar facts of the case, the first respondent is entitled to relief. The first respondent was admitted through a Common Entrance Test process during 2004-2005. He was permitted to take the first semester examinations by the university. He is not guilty of any suppression or misrepresentation of facts. Apparently, there was some confusion in the appellant university itself as to whether the distance education course attended by the first respondent was the same as correspondence course which was recognized. The first respondent was informed that he was not eligible, only after he took the first semester examination. He has however also been permitted to continue the course and has completed the course in 2007. He has succeeded before the High Court. Now after four years, if it is to be held that he is not entitled to admission, four years of his career will be irretrievably lost. In the circumstances, it will be unfair and unjust to deny the first respondent the benefit of admission which was initially accepted and recognized by the appellant university. This Court in Shri Krishan vs. The Kurukshetra University, (AIR 1976 SC 376), has observed that before issuing the admission card to a student to appear in Part-I Law Examination, it was the duty of the university authorities to scrutinize the papers; and equally it was the duty of the Head of the Department of Law before submitting the form to the university to see that it complied with all requirements; and if they did not take care to scrutinize the papers, the candidature for the examinations cannot be cancelled subsequently on the ground of non-fulfilment of requirements. In Sanatan Gauda vs. Berhampur University (AIR 1990 SC 1075), this Court held where the candidate was admitted to the Law course by Law College and University also permitted him to appear for Pre-Law and Intermediate Law examinations, the college and the university were 14 estopped from withholding his result on the ground that he was ineligible to take admission in Law course. Having regard to the above we are of the view that irrespective of the fact that M.A. English (OUS) degree secured by first respondent from Annamalai University through distance education, may not be recognized as an equivalent to the Master's degree of the appellant university, his admission to the law course should not be cancelled. The appellant University is directed to treat the admission as regular admission and permit the first respondent to appear for the law examination and if he has already appeared for the examination, declare his result. The appeal is disposed of accordingly.” (emphasis supplied) Relevant portion of the judgment relied by counsel for the respondents in support of his submission that it is open for the respondents to lay down any policy, rules and regulations as per their own wisdom which cannot be substituted by the Court, in Maharashtra State Board of Secondary and Higher Secondary Education Versus Paritosh Bhupesh (AIR 1984 SC 1543) (Paras 14 & 16) “14....It is exclusively within the province of the legislature and its delegate to determine as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the act...” 16.....Any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that,in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act.” (emphasis supplied) (18) Upon careful consideration of the admitted fact that Class-X course of N.I.O.S. is a recognized course for admission in Class-XI and Class-XII of I.S.C. and further consideration of Clause B(2) of Chapter-1 along with rival submissions of counsel for the parties and the citations given by them, the answer to the question framed in para No.15 is “that according to the law of eligibility, in case of admission of student to higher class, the eligibility is to be decided 15 before admission and even if some decision is to be taken on comparable or equivalent subject, then also, the same is to be taken and