REGIONAL OFFICER C.B.S.E.

A v.

KU. SHEENA PEETHAMBARAN AND ORS.

SEPTEMBER 1, 2003

[BRIJESH KUMAR AND ARUN KUMAR, JJ.] B

Central Board of Secondary Education examinatio1r-Bye-Laws 7.3 and 10.2-Respondent being a regular student failed in class IX examinations and her examination form was not forwarded by the school to the Board- Examinationform was forwarded as per interim directions in a writ petition, therefore it was disposed of being infructuous-Another writ petition was C filed against the proposed action of the board of not permitting her to appear in the examination-Permission to appear in the examination was granted by an interim order, however, declaration of result was to be subject to the final decision of the writ petition-High Court, disposed of the matter directing the Board to declare her result and issue fresh marks D sheet-On appeal Held, her case was covered by bye-law 7. 3 and not bye- /aw 10.2 as she had not cleared class IX examination as a regular student, therefore, she could not be allowed to undertake examination for class X- Interim order only allowed her to appear in the examination subject to final decision of the writ petition, therefore, validity of the examination was E liable to proper scrutiny as per the relevant bye-laws-Mere forwarding of form to the Board does not guarantee permission to undertake the examination-Condoning lapses or overlooking legal requirement on sympathetic considerations to be discouraged as it ultimately affects academic standards.

Bye-Laws 16, 21 (i) & (ii) & 22 (v)-EligibilitytoappearasaPrivate Candidate-Respondent had failed in the class IX examination being a regular student-Held, ineligible as she did not falfill the conditions.

The school authorities withheld the class X examination admission form ofrespondent No. I, a regular student of the school, as she had not G cleared her class IX examination. A writ petition was filed and interim order allowing her to take part in the class X examination held by the Central Board of Secondary Education, was passed. The writ petition was rendered infructuous and disposed of as the school had already forwarded the form. She filed another writ petition when the Board H

A informed her that she would not be permitted to appear in the examination. An interim order was passed allowing her to appear in the examination, however, the result was to be declared subject to decision of the writ petition. The High Court, rejecting the contention of the Board that the respondent No. I was not eligible to appear in the High B School (IX) examination, finally disposed of the writ petition directing the Board to declare her result and issue fresh marks-sheet. It relied on bye-law 10.2 of the Board Examination Bye-Laws as in its opinion the respondent possessed the minimum educational qualification of passing the class VIII examination two years ago. Hence this appeal by C the Board.

The appellant contended that bye-law 7.3, which made completion of a regular course of studies for class IX mandatory for admission to class X, was applicable instead of bye-law I 0.2 and that respondent No. 1 was also not a private candidate as per bye-law 16.

Allowing the appeal, the Court

HELD: 1. Respondent No. I failed to clear her class IX examination which is a necessary requirement as provided under the bye-laws of the E Board so as to be entitled to appear in the class X examination. Condoning the lapses or overlooking the legal requirements on consideration of mere sympathy factor does not solve the problem rather breeds more violation in the hope of being condoned. It disturbs the discipline of the system and ultimately adversely affects the academic standards.(285-E, F)

F 2.1. The High Court overlooked taking note of bye-law 7.3 and merely quoted the applicability of clause (a) of bye-law 10.2 and nothing about the applicability of the other clauses. It failed to consider that bye-law 10.2 will not apply to her but bye-law 7.3 would apply which made it necessary that she must have passed class IX as a regular G student before she could be allowed to undertake the examination for class X. (282-E, G, HJ

2.2. Respondent No. 1 also did not fulfill conditions laid for private candidates, which further clarified the position that her case would H only be covered by bye-law 7.3 and not by bye-law 10.2. (283-A)

2.3. It was completely overlooked that by the interim order, it was A provided that respondent No. l was allowed to appear in the examination, subject to decision in the writ petition. The validity of the examination undertaken by her was liable to proper scrutiny in the light of all relevant bye-laws. 1283-BDI

3. The interim orders in the first writ petition only granted permission for filling up the examination form and merely forwarding of the same by an institution affiliated to the examining body is no surety that it would permit the candidate to undertake the examination, as the forms are liable to be scrutinized and checked. f283-E, F)

4. The practice of permitting students to pursue their studies and to appear in the examination under the interim orders passed in petitions has been deprecated on several occasions. Sympathetic considerations

are pleaded, which result into very awkward and difficult situations.

Rules stare straight into the face of the plea of sympathy and concessions D against legal provisions. [283-G-H, 284-A)

C.B.S.E. & Anr. v. P. Sunil Kumar & Ors., (1998) 5 SCC 377; Guru Nanak Dev University v. Parminder Kr. Bansal, (1993) 4 SCC 401 and A.P. Christians Medical Educational Society v. Government of Andhra Pradesh & Anr. Etc., (1986) 2 SCC 667, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3068 of 1997.

From the Judgment and Order dated 2.7.96 of the Madhya Pradesh High Court in W.P. No. 426 of 1996.

Tara Chand Sharma and Ms. Neelam Sharma for the Appellant.

The Judgment of the Court was delivered by

BRIJESH KUMAR, J. The Central Board of Secondary Education G (for short 'the Board'), felt aggrieved by the decision of Madhya Pradesh High Court rendered on 2.7.1996 in writ petition No. 426 of 1996, filed by the respondents No. 1 and 2, whereby directing the Board to declare the result of the exemination undertaken by the respondent No. I for class X in the year 1996, hence the present appeal. In the impugned judgment H

A it was also directed that a fresh marks-sheet be also issued to her, since the result had been declared earlier only provisionally. The grievance of the Board that the respondent No. I was not eligible to appear in the high school examination, was not accepted.

The brief facts of the case are that the respondent No. I was a student B of St. Paul's School, Morar, Gwalior, affiliated to the Central Board of Secondary Education, New Delhi. She filled up form for high school examination but the same was withheld by the school authorities on the ground that she had not cleared her class IX examination. It gave rise to filing of a writ petition No. 484/95 by respondents nos. I and 2, the C candidate and her father. On 4.4.95 an interim order was passed by the High Court to the following effect :-

"4.4.95

ORDER

(I) Notice of admission was given to the respondents.

(2) There is a report that respondents have refused the notice.

(3) Let a fresh notice be sent by way of registered post also and service be effected by affixation. The Notices be issued for 18th April, 1995.

( 4) In para 11 of the Petition, it has been stated that the Petitioner was initially "promoted" but later on she was declared to have "failed". In this view of the matter, a direction is given to the respondents to permit the petitioner No. 2 to join Class X. This would be subject to the decision of this petition.

C.C. Today.

Sd/- T.S. Doabia

Judge"

Later yet another interim order was granted on 19.9.1995 in Writ H Petition No. 484 of 1995 to the following effect :-

REGIONAL OFFICER C.B.S.E. 1•. SHEENA PEETIIAMBARAN [ BRIJESH KUMAR. J.] 279

"19.9.1995

ORDER

Petitioner No. 2 be permitted to take part in the examination.

To come up on the date already fixed.

Sd/- T.S. Doabia

Judge"

The Writ Petition No. 484/95 was thereafter disposed of by order dated 5.12.95, which reads as under :-

"Heard.

This petition is rendered infructuous as the admission form for appearing in examination of the petitioner has since been sent to

the Central Board of Secondary Education, Delhi. This is class X examination. As per the respondents the Petitioner would be D permitted to take part in this examination. No further direction is required.

Disposed of as such.

Sd/- Judge"

It, however, appears that another writ petition No. 426 of 1996 was filed by respondents No. 1 and 2 with a prayer that a telegram sent by the Regional Officer of the Board, Ajmer, Rajasthan not permitting her to F appear in the examination may be quashed and the petitioner No. 1 may be allowed to appear in the examination of the Board which was to start on 6.3.1996. On 1.3.1996 the High Court passed the following interim order :-

" .... .In view of these circumstances, it is directed that petitioner G should be permitted to appear in the examination at the roll No. 1118864 as mentioned in the telegram, in all papers of Class Xth.

The result, however, would be subject to the decision of this petition, Certified copy today, on payment.

Judge" H

A Thereafter the next order was passed on 17.5.1996 saying " .... Let the result of the petitioner be declared. List in the last week of June, 1996".

Ultimately, the petition was finally disposed of by order dated 2.7.1996.

The High Court in its judgment refers to the plea raised by the appellant to the effect that for taking up examination for Class X a student must B complete a regular course of studies for Class IX from an institution affiliated to the Board. Since the respondent No. 1 had not passed her class IX examination she was not eligible for appearing in the examination in Class X. Thereafter bye-law 10.2 was quoted in the judgment, which provision, according to the High Court, was very material.

C It is as follows :-

"10.2 A candidate for All India/Delhi Secondary School Examination should have :-

(a) passed the Middle School Examination (Class VIII) of a Board or of an affiliated/recognized scholl at least two years earlier than the year in which he would take secondary school (Class X) examination;

(b) secured a grade higher than grade E in each of the subject of internal assessment at the Examination refferred to at (a) above; and

( c) passed the third language as per requirement laid down in the scheme of studies."

On the basis of the above provision, the Court found that the respondent No. 1 possessed minimum educational qualification of middle school examination (Class VIII) so as to be entitled for appearing in the class X examination. Hence direction was issued to finally declare the result of G respondent No. 1 and to issue a fresh marks-sheet. Learned counsel for the appellant has, however, down our attention to provision contained in byelaw 7.3 of the bye-laws of the Board which reads as under :-

"7.3. Admission to Class X in a school shall be open only to such a student who :-

REGIONAL OFFICER C.B.S.E.1. SHEENA PEETHAMBARAN [ BRJJESH KUMAR, J, J 281

(a) has completed a regular course of studies for class IX, and; A

(b) has passed class IX examination from an institution affiliated to this Board or to any recognized boardor to any recognize board or is recognized by the Education Department of the govt or the State/U.T. in which such an institution is located.

xxx xxxx" B

Thereafter bye-law no. 16 is referred, relating to private candidates. It is as follows :-

"16. Private Candidates

Definition : For the purposes of the bye-laws contained in this chapter and the chapter 5, unless there is something repugnant in the subject or context a 'Private Candidate' means a person who

is not a Regular but, under the provisions of the bye-laws, is D allowed to undertake and/or appear in the All India/Delhi Senior School Certificate Examination or All India/Delhi Secondary School Examination of the Board.

xxxx xxxxx xxxxx"

We find that bye-laws nos. 21 and 22 are also relevant which are quoted E

below:-

"21. Person eligible to appear as a Private Candidate for All India Secondary School Examination :-

(i) A candidate who had failed at the All India Secondary School' Examination of the Board, will be eligible to reappear at the subsequent examination as a private candidate in the syllabus and text books as prescribed for the examination of the year in which he will reappear.

(ii) Teachers serving in institutions affiliated to the Board.

xxxx xx xx xxxx

22 (v) Those regular Candidates who have failed to obtain promotion to class X of the school affiliated to the Board or any H

other recognized Board shall not be admitted to the Delhi Secondary Examination of the Board as private candidates."

The definite case taken on behalf of the appella:it before the High Court has been that the respondent no. I had failed in her class IX examination B for the year 1994-95. In this context the prayer made by the respondent no. 1 in her writ petition no. 484 of 1995, may be referred to, which reads as follows :

"(i) to quash the result declared by the Respondent No. 3 in so far as respondent No. 1 is concerned and Respondent No. I be declared as promoted;

(ii) Respondent No. 3 be directed to take supplementary examination in Hindi and English subjects whithin a period of seven days with a further direction to the respondent no. 3 to give respondent no. 1 some time to prepare herself for the supplementary examination."

It is thus clear that, according to the respondent no. 1 herself, she was declared failed in her examination for class IX. The High Court, while finally deciding the writ petition no. 426of1996 by order dated 2.7.1996 E conveniently overlooked to take note of the provision contained in byelaw no. 7.3, contents of which have been indicated above. There was only a mention of clause 7.3 of bye-laws of the Board but nothing beyond that was indicated or observed in the judgment, as to why it would not be applicable to the case. Aftger quoting bye-law 10.2 the High Court held F that the respondent No. I was eligible to appear in the high-school examination since there was a gap of two years in between her two examinations viz. class VIII and class X. The High Court also did not record any finding in respect of other conditions as mentioned in bye-law no. 10.2, namely, a student must have secured higher than 'E' grade in each subject of internal assessment and has also passed the third language as per G requirement laid down in the scheme. The High Court failed to consider the bye-law 10.2 will not be applicable to the respondent no. I but it would be bye-law 7.3, which would apply in her case. Therefore, it was necessary that she must have passed class IX as a regular student before she could be allowed to undertake examination for class X held by the Board. The H position stands further clarified in regard to the private candidates under

bye-laws no. 16 and 21. The respondent no. I did not fulfill the conditions A laid for private condidates and her case would only be covered by byelaw 7.3 and not by bye-law no. 10.2 of the examination bye-laws of the Board as held by the High Court. Despite the position under the bye-laws as indicated above, the High Court finally disposed of the writ petition no. 426 of 1996 cursorily holding that since the respondent no. 1 had appeared B in the examination and her result had been declared provisionally therefore, the Board was directed to declare her result of class X and to issue a fresh marks sheet without any endorsement thereon (emphasis supplied). It was completely overlooked that by order dated 1.3 .1996, it was provided that the respondent no. I was allowed to appear in examination, subject to the decision of the writ petition. Hence there was no occasion to say that C since provisional result has been declared therefore, final result should also be declared with a fresh marks sheet without any endorsement thereon. The validity of the examination undertaken by respondent no. 1 should have been properly scrutinized in the light of all the relevant examination byelaws of the Board.

We also find that in writ petition no. 484of1995, interim orders were granted permitting the filling up of the form for high-school examination.

But while ultimately disposing of the petition, it was held that the writ petition had become infructuous since the examination form of the E respondent no. I had been forwarded to the Central Board of Secondary Education, Delhi and it is attributed to the respondents in the petition, that "as per the respondents", the candidate would be permitted to take part in the examination. It was, therefore, thought that no further direction was required and the matter was disposed of as infructuous. Merely forwarding F of an examination form by an institution affiliated to the examining body is no surety that the examining body would necessarily permit the candidate to undertake the examination. The forms after being sent are scrutinized and checked by the examining body.

This Court has on several occasions earlier deprecated the practice G of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases it is ultimately pleaded that since the course was over or the result has been declared, the matter deserves to be considered sympathetically. It results into very awkward and difficult situations. Rules H

A stare straight into the face of the plea of sympathy and concessions, against the legal provisions. A few decisions on the point may be perused. In C.B.S.E. and Anr. v. P. Sunil Kumar and Ors., [1988] 5 SCC page 377, the institutions whose students were permitted to undertake the examination of the Central Board of Secondary Education were not affiliated to the B Board, hence the students were not entitled to appear in the examination.

They were, however, allowed to appear in the examination under the interim orders granted by the Court in contravention of the rules and regulations of the Board. The High Court considering the matter sympathetically had not interfered, but this Court observed thus :

" .... But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students ... "

The order of the High Court was set aside. Another decision reported in Guru Nanak Dev University v. Parminder Kr. Bansal, [1993] 4 SCC 401, E a three judge bench decision, was relied upon in the case of Sunil Kumar (supra). A passage from the above noted decision was also quoted therein which reads as follows :

"We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose, illconceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions 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.

H In the present case, the High Court was apparently moved by

sympathy for the candidates that by an accurate assessment of A even the primafacie legal position. Such orders cannot be allowed to stand. The courts should not embarrass academic authorities by themselves taking over their functions."

Yet another decision referred to is reported in A.P. Christians Medical B Educational Society v. Government of Andhra Pradesh and Anr. Etc. Etc., [1986] 2 SCC 667, again a three judge bench decision. It was observed in this case :

" .... We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by C the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws."

The above referred matter relates to the admission and examination of D M.B.B.S. courses.

In the background of the law as laid down by this Court, we find that in the case in hand the fact situation was even worse as compared to the decision cited above. The student, namely, respondent no. I had failed to clear her class IX examination which was a necessary requirement as E provided under the bye-laws of the Board so as to be entitled to appear in the class X examination conducted by the Board. Despite notice, no one has put in appearance on behalf of the respondents no. I and 2 to indicate any fact or circumstance so as to take any different view, Condoning the lapses or overlooking the legal requirements in consideration of mere F sympathy factor does not solve the problem rather breeds more violations in the hope of being condoned. It disturbs the discipline of the system and ultimately adversely affects the academic standards.

In the result, we allow the appeal and set aside the judgment and order dated 2.7.1996 passed by the High Court in writ petition No. 426of1996. G There would, however, he no order as to costs.

A.Q.

Appeal allowed.