The Court may interfere when a decision is devoid of any reason or affected by malafides or when the decision is reached after statutory violations: Kerala High Court

WP(C)Nos.13129 & 15971 OF 2021 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY THE 31ST DAY OF AUGUST 2021 9TH BHADRA 1943 WP(C) NO. 13129 OF 2021 AGED 16 YEARS REPRESENTED BY HER MOTHER AND LEGAL GUARDIAN MAYA R MANI W O. MR. B.AJAYAKUMAR AGED 45 YEARS RESIDING AT T.C.16 426 ESWARAVILASAM ROAD THYCAUD P.O. THIRUVANANTHAPURAM PINCODE 695014 JOSEPH JIMMY AGED 18 YEARS S O. JIMMY PAUL PADINJARE KOCHUVETTIL KOLAKKAD P.O. KANNUR PINCODE 670673 ANCY BINNY AGED 16 YEARS REPRESENTED BY HER MOTHER AND GUARDIAN MRS. BINDU BINNY AGED 48 YEARS D O. JOHN CHERIYAN THAYYIL HOUSE ALAYAMON P.O. ANCHAL KOLLAM ANNIE FREDDY AGED 16 YEARS REPRESENTED BY HER MOTHER AND GUARDIAN JACQUILINE D. AGED 42 YEARS W O. FREDDY MORNING STAR POTHIVILAKAM POOVAR THIRUVANANTHAPURAM PAVITHRA M. AGED 16 YEARS REPRESENTED BY HER FATHER AND GUARDIAN MR. A.KANNAN AGED 51 YEARS S O. AYYAPPAN ACHARI TC 38 2383 ARYASALA JUNCTION THIRUVANANTHAPURAM PINCODE AJAYA KUMAR. G WP(C)Nos.13129 & 15971 OF 2021 STATE OF KERALA REPRESENTED BY THE SECRETARY GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT DIRECTORATE OF GENERAL EDUCATIONHOUSING BOARD BUILDINGS SANTHINAGAR THIRUVANANTHAPURAM PINCODE 695001 SRI T.B HOOD SPL GOVERNMENT PLEADER TO AG THIS WRIT PETITIONHAVING COME UP FOR ADMISSION ON 31.08.2021 ALONG WITH WP(C).15971 2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)Nos.13129 & 15971 OF 2021 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY THE 31ST DAY OF AUGUST 2021 9TH BHADRA 1943 WP(C) NO. 15971 OF 2021 MOHAMMED MIDLEJ CHAVING COME UP FOR ADMISSION ON 31.08.2021 ALONG WITH WP(C).13129 2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)Nos.13129 & 15971 OF 2021 Six students studying in Plus One class have approached this Court with these writ petitions impugning notification dated 28.5.2021 issued by General Education Department of the State by which the First Year Higher Secondary Examination has been scheduled to be held from 6.9.2021 to 16.9.2021. The petitioners have sought for quashing the notification and cancel the Plus One final examination for the academic year 2020 2021. In one of the writ petitions directions have been sought to the Board of Higher Secondary Examinations to frame a guideline for conducting Plus One Final Year examinations internally in each school. 2. In view of the commonality of the issues raised both these writ petitions are taken up and disposed of together with the consent of the contesting parties. For the sake of ease and clarity the pleadings and Exhibits in W.P.(C) No.15971 2021 shall be mainly referred to in this judgment 3. The petitioner is stated to be a student studying in the Umbichy Hajee Higher Secondary School at Chaliyam in Class XI Commerce batch. It is contended that due to COVID 19 pandemic tutoring for Classes XI and XII are conducted online. Due to poor electronic connectivity network range issues and the non availability of electronic devices the studies of the petitioner has been adversely affected. It is contended that there are other WP(C)Nos.13129 & 15971 OF 2021 students in the school who suffer the same handicaps. 4. The respondents have scheduled the First Year Higher Secondary Terminal Evaluationfrom 6.9.2021 to 16.9.2021 as is evident from Ext.P2 notification. The notification was issued without considering the gravity of the COVID 19 pandemic situation prevalent in the State of Kerala. The petitioner contends that to secure the life and health of citizens and to keep the pandemic at bay the 4th respondent had issued Ext.P3 order imposing complete lockdown from 8.5.2021 to 16.5.2021 by invoking the powers under Section 20of the Disaster Management Act 2005. The lockdown was later extended in phases till 9.6.2021. It was only by Ext.P4 order dated 31.5.2021 that the 4th respondent had permitted certain Government departments to function with 50% attendance that too from 7.6.2021. According to the petitioner Ext.P2 which is seen published on 31.5.2021 is clearly against the directions imposed under Ext.P3. 6. The petitioner contends that the 4th respondent has reassessed the situation of the spread of the pandemic and the Test Positivity Rate in various Districts and have issued Ext.P5 order fixing guidelines and directions and detailing the permitted activities. Those guidelines are still in force. The 4th respondent had granted permission to conduct the examination only after the issuance of Ext.P5. According to the petitioner the decision taken by the respondent to conduct the examination was without any application of mind or after discussion with Government agencies. They have ignored the dire WP(C)Nos.13129 & 15971 OF 2021 situation prevailing in the State. 7. The petitioner contends that he is a resident of the Kadalundi Grama Panchayat which is included in the ‘D’ category by the 4th respondent as the Test Positivity Ratein the area is above 15 8. The petitioner further contends that he is residing in a coastal area where internet connectivity is very poor. He has not been able to attend the online classes regularly due to the above fact. The classes for Class XII commenced on the last week of June 2021 and the scheduling of the final year exam of Class XI while the classes for XII are going on will result in untold misery to the students. Though he had a smartphone when the classes commenced the phone got damaged and he was not in a position to purchase a new phone due to financial difficulties. According to the petitioner the online classes are not very effective and students who are better placed and financially well off will have an unfair advantage. It is contended that even during discussions in the assembly the digital divide prevailing in the State was highlighted and though it was assured that no efforts shall be spared to bridge the divide nothing worthwhile has happened. The petitioner refers to Ext.P8 and P9 proceedings to substantiate the said contention. 9. According to the petitioner the COVID 19 cases in the State have risen to alarming proportions and the Test Positivity Rate is also very high. As the students pursuing class XI are largely unvaccinated they are very vulnerable to the virus. It is contended that the decision of the WP(C)Nos.13129 & 15971 OF 2021 respondents to conduct the class and examinations would affect the life and health of the students. 10. The Central Board of Secondary Education had cancelled the public examinations for Class X and XII and had adopted a scheme for internal evaluation of students in the COVID 19 pandemic situation which scheme was approved by the Hon’ble Supreme Court of India. It is contended that some of the students intervened in W.P.(C) No.6221 pending before the Hon’ble Supreme Court and by Ext.P10 order the Apex Court refused to examine the grievance of the students of the State of Kerala who wanted to pursue XI standard examination and they were directed to approach this Court and raise all the contentions. The decision to conduct class XI examination while COVID 19 cases are peaking and the State is readying itself to face the third wave of the pandemic is an erroneous approach and violative of the rights of the students under Article 14 19(1)(a) and 21 of the Constitution of India 11. The very same contentions are advanced in W.P.(C) No 131221 filed by a few Plus Two students In W.P.15971 2021 the reliefs sought for by the petitioner are as follows a) issue a Writ of mandamus directing the second and third respondents to frame a guideline for conducting class XI final year examinations internally on each school wise and direct not to WP(C)Nos.13129 & 15971 OF 2021 conduct centralised class XI final year examinations as in Exhibit P 2 b) issue a Writ of certiorari and quash Exhibit P 2 as it violate Article 14 21 and 21 A of Constitution of India and the Disaster Management Act 2005 In W.P.(C) No.13129 21 the petitioners have sought the a) to issue a Writ of mandamus or any other appropriate Writ direction or order directing the respondents to cancel the plus one final examination for the academic year 2020 2021 and follow the scheme adopted by the CBSE Board for the conduct of examination of plus one class and thereby ensuring the bright future of the plus 14. Counter affidavit has been filed in W.P.No. 131221 which was adopted in the other Writ petition It is stated in the counter that the 2nd respondent issued Exhibit P1 notification on 28 05 2021 for conducting the first year higher secondary examinations from 06 09 2021 to 16 09 2021. As per the notification only those candidates who have undergone Continuous Evaluationfor all the six subjects shall be eligible to appear for terminal evaluation of the first year higher secondary examination. Some of the petitioners have got themselves registered for the Plus One examination after completing their continuous evaluation. COVID 19 pandemic has created an unprecedented situation across the world and new methods had to be devised for imparting education WP(C)Nos.13129 & 15971 OF 2021 Classes had to be conducted in online mode to prevent the loss of one academic year for the students. All efforts were taken to provide access to digital classes to all the students. The classes were imparted through VICTORS a Television Channel owned by the Kerala Infrastructure and Technology for Education a Government of Kerala establishment set up to foster promote and implement the modernisation of educational institutions in the State using technology. The Class X and Plus Two classes were conducted through digital platforms during the academic year 2020 2021. The Secondary School Leaving Certificateand Plus Two examinations were held in the State in April 2021 after ensuring that all safety measures are taken to prevent the spread of COVID 19 infections. The Plus One examination was also scheduled in the month of April May 2021 However in view of the rising number of COVID 19 cases it became difficult to conduct Plus One and Plus Two examinations simultaneously and hence Plus One examination was postponed. As the examination dates were announced well in advance the students got enough time for preparation 16. The form and structure of the Plus One examination had to be changed substantially in view of the COVID 19 scenario. The examination was decided to be held as per the curriculum that has been completed online Sufficient opportunities have been provided to the students to attend the classes in digital mode and to interact with teachers through various online methods. The services of the State Council for Educational Research and WP(C)Nos.13129 & 15971 OF 2021 Trainingwere availed to isolate a focus area of the syllabus and as per the inputs received Exhibit R2(a) circular dated 02 08 2021 was issued to all schools by the Director General of Education. Only questions from the focus area will be given prominence in the Plus One examination. It has also been decided to double the questions so that the students need to attend only 50% of questions to be eligible to get full marks in each of the subjects 17. The Plus Two online classes were stopped on 31 07 2021. Plus One revision class commenced on 2.8.2021 and it is stated to continue till 14 08 2021. In addition the Higher Secondary Directorate proposed to conduct a weeklong live phone in program through VICTORS channel to enable the students to clarify their doubts. Plus Two classes will be resumed only after the end of the Plus One examination 18. From the year 2009 Plus One Board Examination is conducted in the State and the marks scored in the Plus One examination are added to the Plus Two marks to determine the eligibility of the candidates for higher studies. Plus One examination is normally conducted in the month of March and improvement examinations during the month of September October of each year. However owing to the pandemic Plus One examination had to be postponed and in view of the above the students got enough time to prepare for the examination. The students who failed in the previous Plus Two examinations need to pass Plus One and Plus Two examinations in the subjects in which they had failed. So if the Plus One examination notified as WP(C)Nos.13129 & 15971 OF 2021 per Exhibit P1 is not conducted it would adversely affect their chances to pass and complete the course by 20212022. Further as per G.O(M.S 173 2021 G. Edn dated 05 08 2021 the last chance to write Plus Two examination for students who have not been eligible for higher studies in the Higher Secondary Examinations held from March 2009 to March 2016 is the Plus Two examination to be held in the month of March 2022. To appear in the Plus Two examination in the month of March 2022 it is mandatory for those students to write the Plus One examination notified as per Exhibit P1 According to the respondent if the Plus One examination is not conducted as per Exhibit P1 notification those students will suffer serious hardship 19. The SSLC and Plus Two examinations were conducted in April 2021 after taking all safety measures. In July 2021 the APJ Abdul Kalam Technological University conducted Engineering examinations in offline mode In the days just passed nearly One lakh students appeared for the Engineering Entrance examinations held offline. Plus One examination can also be conducted by adhering to all Covid 19 protocols brought out by the Government and by following the guidelines of the health authorities as was done for the earlier examinations. Separate arrangements can be made for those students who are Covid positive or who are in quarantine and for students who show any symptoms of Covid. It is stated that several measures are proposed to be taken for the safety and health of the students teachers and others involved in the Plus One examination process. The measures taken WP(C)Nos.13129 & 15971 OF 2021 have also been detailed which are as follows: A. Examination hall furniture and school compound will be cleaned and scrutinised sanitized. For this the service of the Health Department Parent Teacher AssociationsFire Force Local Self Government Institutions and Volunteers will be availed. The furniture in the examination hall will be sanitised before each examination. B. The entry of the students to the examination centre will be allowed only through the main entrance where non teaching staff health workers and members of the PTA will be deployed for providing sanitiser soap and water to the students and to check the temperature of the students using a thermal scanner. C. Classrooms with proper air circulation and adequate light will be used for examination. Air conditioned rooms will not be used. The maximum Number of students accommodated in a room will be twenty and it was pointed out that the respondents took note of the difficulties faced by the students and the SCERT was asked to identify focus areas and teachers were asked to give emphasis on those areas. The WP(C)Nos.13129 & 15971 OF 2021 focus areas have been carefully chosen in such a manner that they will aid the students in brushing up the Plus Two subjects. The school authorities have been intimated that questions from those focus areas will be given prominence in the Plus One exams. Furthermore in an unprecedented manner the students have the option of answering just 50% of the questions to be eligible to get full marks for each of the subjects. The learned counsel would then point out that Plus Two classes were stopped to enable the students to prepare for the Plus One examination and classes are slated to commence only after the exams. The predicament of the students who have failed and those students who have not been eligible for higher studies from 2009 onwards is also highlighted by the learned counsel. The experience gained by the State in conducting SSLC Plus Two and Engineering Entrance examinations are emphasized by the learned counsel to hammer home his contention that the apprehension of the students is misconceived. According to Mr. Hood none of the petitioners has a case that at any point of time they have informed either the respondents or the School concerned that they are unable to access the classes for lack of devices or poor internet connectivity. They cannot come and paint a different picture or raise the cause of other students. It is submitted that if the conduct of the exams is interfered with the whole admission process would get derailed and the same would affect the interest of the entire student community I have carefully evaluated the contentions advanced and have WP(C)Nos.13129 & 15971 OF 2021 gone through the records 26. About six students have approached this Court seeking cancellation of the Plus One exams. I find that it was by notification dated 28.5.2021 that the respondents have scheduled the conduct of the First Year Higher Secondary Examinations to be held from 6 9 2021 to 16 9 2021. It appears from Ext.P2 that the scores obtained from the First Year Exams are to be carried forward to the second year and the combined scores of First and Second Year Examinations and grades obtained thereupon shall determine the eligibility of the candidate for higher studies. The respondents have decided that there shall not be any practical evaluation for the First Year exams. From Exhibit R2it appears that the difficulties faced by the students as well as various other aspects were considered by the respondents while taking a decision to hold the exams. For each subject the SCERT has formulated focus areas and the students need to concentrate only on such areas. To make it simpler what is envisaged is that double the questions would be offered to the students and they are required to answer only 50% of the questions to secure full marks. As classes for Plus Two had commenced to ensure that the students are not subjected to serious strain steps have been taken to put the classes on hold till the Plus One exams are completed. These steps taken amply shows that unlike previous years the students will not have much difficulty while facing the exams I find it difficult to appreciate the contention of the petitioners WP(C)Nos.13129 & 15971 OF 2021 that the decision to conduct the exams was taken by the respondents without much deliberation and without any concern for the health of the students. I find that Ext.P2 notification was issued as early as 28.05.2021 fixing the date of exams in the month of September. From the materials made available it appears that serious efforts have gone in to make sure that the students are not unduly strained and at the same time the process of examination goes on The schools have been told to concentrate on certain focus areas and they have been informed that the questions will be asked only from those areas The students have been given the option of attempting only 50% of the questions to gain 100% marks. The fact that tutoring through the online mode is not as effective as in the physical mode was taken note of. The respondents also took note of the fact that students who had failed in the earlier exams and who want to pursue further studies will be adversely affected if physical exams are not held. This is clearly a matter of policy of the Government and it is obvious that much deliberation has gone into the same Once the Government after discussion with the experts in various fields decides to go forward with the exams with due regard to all aspects of the matter unless the petitioners are able to show that there is malafides or arbitrariness this Court will not be justified in interfering with the conduct of exams. The interference of Courts is neither warranted to look into the quality of material relied upon by the Government to approach a decision nor to adjudicate upon the sufficiency of such material. These matters are of a subjective character and if the legislature permits subjective powers on one WP(C)Nos.13129 & 15971 OF 2021 organ of the State this Court in the exercise of its powers of judicial review is not expected to substitute its own subjective opinion in its place. The Court may interfere when a decision is devoid of any reason or affected by malafides or when the decision is reached in the aftermath of statutory violations. In other words the formation of the opinion satisfaction by the Government about the conduct of the exam is a purely subjective process and if the materials show that the opinion was reached in good faith it is immune from judicial review 28. The next contention of the petitioners is that the conduct of physical exams would violate their right to life. The respondents have narrated the steps that they have taken to ensure that the exams are held in a safe and protected environment and they have asserted that all measures shall be taken to protect each and every child. I find that the State has conducted SSLC Plus Two and the Engineering Entrance exams successfully. Several lakhs of students have attended the exams and the petitioners have not even stated that the conduct of the exams as aforesaid led to any unforeseen consequences. I am in the facts and circumstances not impressed with the contention that by conducting the exams the constitutional rights of the petitioners would be violated. The Pandemic is here to stay and as rightly submitted by the learned Senior Government Pleader the life must go on Except for a handful of students no one has come forward seeking to cancel the exams. From the records it appears that the students pursuing the State WP(C)Nos.13129 & 15971 OF 2021 syllabus will have an opportunity to score well if some effort is put in and not the other way around. 29. The next contention is that due to lack of digital gadgets poor internet connectivity etc. some of the students were not able to participate in the classes. The petitioners have not produced any corroborating materials to substantiate their contentions except the excerpt of proceedings of the assembly. The petitioner in W.P.(C) No.15971 of 2021 have not even approached the respondents or the school authorities at any time prior to the filing of the writ petition asserting that he is not having the necessary equipment to access the online classes. The parent of one of the petitioners in W.P.(C) No.13129 2021 who is an advocate by profession is stated to have sent a mail stating that his child has not been able to properly engage in online classes. In other words none of the petitioners had a case that they have suffered in their studies due to lack of gadgets or connectivity. It is too late in the day to raise such contentions before this Court 30. The contention of the petitioner in W.P.(C) No.15971 2021 that the decision to conduct the Plus One exam is ultra vires the provisions of Act 505 cannot be accepted. I find that by Ext.P5 order dated 15.6.2021 the DMA has permitted the conduct of all National and State level public exams including Sports Section Trials from the date of the order. The scheduling of the examination was from 6.9.2021 to 16.9.2021 and no exception can be taken on the same. WP(C)Nos.13129 & 15971 OF 2021 31. I also find that a writ petition was filed in Public Interest as WP C) No.17399 2020 seeking to quash the Government Circular dated 18.8.2021 as per which the First Year Higher Secondary Model examination was scheduled to be held from 3.8.2021 to 4.9.2021 and also to quash the notification which is impugned in this Writ Petition as per which the conduct of the main exam was scheduled. A Division Bench of this Court refused to interfere holding that the petitioner in the said writ petition had failed to establish any arbitrariness or illegality on the part of the respondents. Having considered the matter from all perspectives I am of the considered opinion that the petitioners have not made out any case for interference. These writ petitions are accordingly dismissed. RAJA VIJAYARAGHAVAN V WP(C)Nos.13129 & 15971 OF 2021 APPENDIX OF WP(C) 15971 2021 PETITIONER S EXHIBITS COPY OF THE CERTIFICATE ISSUED BY THE UMBICHY HAJEE HIGHER SECONDARY SCHOOL COPY OF THE NOTIFICATION DATED 28.5.2021 ISSUED BY RESPONDENTS 2 AND 3 COPY OF THE ORDER G.O.(RT) NO.404 2021 DMD DATED 6.5.2021 ISSUED BY THE 4TH COPY OF THE ORDER G.O.(RT) NO.448 2021 DMD DATED 31.5.2021 ISSUED BY THE 4TH COPY OF THE ORDER G.O.(RT) NO.467 2021 DMD DATED 15.6.2021 ISSUED BY THE 4TH COPY OF THE TPR DATA FROM 8.5.2021 TO 20.6.2021 MAINTAINED IN THE WEBSITE OF GOVERNMENT OF KERALA COPY OF THE CATEGORIZATION OF LOCAL SELF GOVERNEMNT ISSUED BY DISTRICT COLLECTOR COPY OF THE KERALA LEGISLATIVE ASSEMBLY PROCEEDINGS IN ADJOURNMENT MOTION DATED COPY OF THE RELEVANT EXTRACT OF THE PROCEEDINGS BEFORE KERALA LEGISLATIVE ASSEMBLY ON 8.6.2021 COPY OF THE ORDER DATED 24.6.2021 IN WPC 620 OF 2021 OF HON BLE SUPREME COURT OF WP(C)Nos.13129 & 15971 OF 2021 APPENDIX OF WP(C) 13129 2021 PETITIONERS EXHIBITS TRUE COPY OF THE NOTIFICATION NO. EX 11 1 24300 HSE 2020(1) DATED 28.5.2021 OF THE 1ST RESPONDENT TRUE COPY OF THE ORDER DATED 24.6.2021 OF THE HON BLE SUPREME COURT IN I.A.NO.67564 2021 IN WP(C) 620 2021 TRUE COPY OF THE REPRESENTATION DATED 25.5.2021 SEND VIA EMAIL BY THE 1ST PETITIONER THROUGH HER GUARDIAN TO THE 1ST RESPONDENTS EXHIBITS A TRUE COPY OF THE CIRCULAR DATED 02 06 2021 ISSUED BY THE DIRECTOR GENERAL 

Summary: It appeared that the students pursuing state syllabus would have an opportunity to score well if some effort was put on and not the other way around. The writ petition had been dismissed because petitioners have not made any case for interference held by Hon’ble Justice Raja Vijayaraghavan V in Mohammad Midlej C (Minor) versus State of Kerala [ WP(C) 15971/2021]. A Division Bench of this Court refused to interfere, holding that the petitioner in the said writ petition had failed to establish any arbitrariness or illegality on the part of the respondents. The facts leading to this case relate to the writ petition filed by six students of plus one class who have approached the court impugning notification dated 28.5.2021 issued by the General education department of the state. The first-year higher secondary examination has been conducted from 6.9.2021 to 16.9.2021. The petitioners seeking to quash the notification mentioning the issues related to the online study due to pandemics, so all students are not able to get the proper classes due to the internet issues, lockdown in state and other related problems like dangerous for health and life. Under article 21 of the Indian constitution, the Right to life will hamper and seek the internal examination like the CBSE board conducted for class 10th and 12th. Respondent also kept the points like this examination has been supposed to conduct in April month. Still, due to the pandemic, it has been cancelled, and the examination date has been announced well in advance. The student got enough time for preparation. The Focus area has also been isolated. It has also been decided to double the questions so that the students attend only 50% of the questions to get full marks in each subject. The Plus Two online classes were stopped on 31/07/2021. Plus, one revision class commenced on 2.8.2021, and it is stated to continue till 14/08/2021. This exam is essential for admissions to good colleges for higher studies because it will add those marks. All preventive measures will be taken for the Covid situation. Judgement of the Petition based on the following points pointed by Sri. Hood, the learned Senior Government Pleader. He would point out that the apprehension expressed by the petitioners are misconceived. Several 1000 students eagerly wait to test themselves in the exam, and the petitioners do not represent such students. It was pointed out that the respondents took note of the difficulties faced by the students, and the SCERT were asked to identify focus areas and teachers were asked to emphasize those areas and classes were stopped to enable the students to prepare for the Plus One examination and courses are slated to commence only after the exams. None of the petitioners has a case that at any point of time, they have informed either the respondents or the School concerned that they are unable to access the classes for lack of devices or poor internet connectivity.