Central Board of Secondary Education vs Nisha and Another

R.S. Mongia, J.—This Letters Patent Appeal has been filed against the judgment of the learned single Judge dated July 30, 1998.

Briefly the facts giving rise to the present appeal may be noticed. Ranjit Kashyap, Anju Goyal and Nisha (now respondent No. 1) had filed C.W.P. No. 6967 of 1998 with the following prayers :--

"That Writ of Certiorari to declare Bye-laws 42(iii) of the Examination Bye-laws of the Central Board of Secondary Education as illegal, and ultra vires of the provisions of the Bye-laws as well as the Constitution of India.

AND

FURTHER a Writ of Mandamus may please be issued to the Respondent No. I to the effect that the petitioners should be deemed to have passed their Theory Examination in "Introductory Computer Science" held in April, 1998 on the basis of having passed the Practical Examination in "Introductory Computer Science" in April, 1997; OR

In alternative petitioners'' fresh examination be taken immediately under the old syllabus in "Introductory Computer Science" (Theory) of 10 + 2 and the result be declared along with the rest of the batch of April, 1998: OR

In alternative the petitioners be given a Third Chance to reappear in August/September, 1998 under the old syllabus of "Introductory Computer Science."

OR

In the alternative the petitioners be given the opportunity to reappear in August/September, 1998 under the New syllabus of "Computer Science."

The three above named candidates had appeared in 10 + 2 examination in April. 1997, held by the appellant-Central Board of Secondary Education (in short C.B.S.E,). They had got compartment in the paper of Introductory Computer Science and as per the Bye-law 42 of the Examination Bye-laws (to which reference will be made hereinafter), they were permitted to reappear in the said paper in the examination held in August/September, 1997, but they failed to clear the compartment paper. They were given the second chance as per Bye-law 42 to reappear in the said paper in March-April, 1998. During the pendency of the writ petition, the result of the compartment paper held in March-April, 1998, was declared and writ petitioners Nos. I and 2, namely, Ranjit Kashyap and Anuj Goyal had been declared pass whereas, writ petitioner No. 3 now respondent No. 1 again tailed. Accordingly, the writ petition survived qua writ petitioner Ms, Nisha only. At this stage, the Bye-law 42 of the Examination Bye-Laws of the C.B.S.E. may be noticed :--

"42. Compartment Examination for Secondary/Senior School Certificate Examination, .

(1) A candidate placed in compartment may reappear at the compartmental examination to be held in July/August and may avail himself/herself of the second chance in March/April next year. The candidate will be declared passed provided he/she qualifies the compartmental subject in which he/she had failed.

(i) A candidate who does not appear or fails at one or both the chances of compartment shall be treated to have fai led i n the exami nation and shall be required to reappear in all the subjects including practical at a subsequent Annual Examination of the Board as per syllabi and courses laid down for the examinations concerned in order to pass the examination.

(iii) Syllabi and courses for the compartmental candidates in March examination shall be the sante as applicable to the candidates of full subjects appearing at the examination.

(iv) A candidate placed in compartment shall be allowed to appear only in one subject at the second chance compartmental examination to be held in March/April next year.

(v) For subjects involving practical work,.in case the candidate has passed in practical at the main examination he/she shall appear only in theory part and previous practical marks will be carried forward and accounted for. In case a candidate has failed in practical he/she shall have to appear in theory and practical both irrespec- live of the fact that he/she has already cleared the theory examination."

The argument on behalf of Ms. Nisha before the learned single Judge was that Bye-law 42(1) provides for two chances to a candidate who might have been placed under compartment to clear the compartment paper in which one has got compartment, bui clause 42(1)(iii) makes the second chance nugatory and illusory inasmuch as in the second chance, if the syllabi is changed, which is applicable to the candidates of full subjects appearing at the examination, then such a candidate who has not been taught the new syllabi can hardly pass that examination. Just to illustrate the true import of Bye-Law 42, it may be observed that if a candidate gets a compartment in the annual examination, then he gets another chance to clear the compartment paper in the supplementary examination held in August-v September of the same year but if he still fails to clear the compartment, then he is given another chance in March-April next year along with the regular candidates for whom that is the first annual examination. The vires of Bye-law 42(iii) (supra) were challenged. The learned single Judge held that no successful challenge can be made with regard to the vires of Bye-law 42(iii) and further observed that as a matter of fact, the principle laid down therein is laudable one. However, the learned single Judge further went on to say that since the regulation itself provides two chances to clear the compartment and if the second chance is to be taken by a candidate with a new syllabi, the second chance would become illusory and would not be a real effect ve chance. On these premises, learned single-Judge allowed the writ petition by giving the following directions :--

"This petition is accordingly allowed and a direction issued to respondent No. 1 to give petitioner No. 3 one more chance in the paper in question as per the syllabi which she had studied in the year 1995-97.

It has been urged by Mr. Kataria that the examination should now be fixed expeditiously. Respondent No. I is accordingly directed to hold the examination for the petitioner before the end of October, 1998 after giving her a notice of at least one month prior to the date of examination."

While issuing notice of motion, we had stayed the operation of the judgment of the learned single Judge.

We have heard the learned counsel for the parties. Before we deal with the arguments, we may observe here that a number of candidate had appeared to clear the compartment paper in the subject of Introductory Computer Science held in April, 1998. Various centres in the country and the break up of the number of candidates who appeared at various places and the number of candidates who have cleared the said examination may be noticed. (This information has been supplied by the learned counsel for the appellant).

"Centre

Number of candidates appeared in the compartment paper of Introductory Computer Science

Number of Candidates passed

Chandigarh

29

17

Ajmer

15

10

Madras

13

5

Allahabad

33

28

Delhi

24

8"

It may be observed here that the seventeen candidates, who have passed in the compartment paper in Chandigarh included the two petitioners.

Learned counsel for the appellant argued that once a particular regulation gives a particular concession to a candidate, it has to be read as a whole. Bye-law 42 (supra) gives two chances to a candidate to clear the compartment, the first chance is with the old syllabi and the second chance is with the new syllabi, if any, which may have been introduced for the studies of the next session. Legislation/delegated Legislation may give as many number of chances as it deems proper and also impose condition as to how those chances are to be availed of. The candidates need not have been given any chance to clear compartment at all or they may have been given just one chance. Nobody could claim two chances as a matter of right. The two chances envisaged were of the type mentioned above. Not only that the Regulation or the Bye-laws so provided, even in the form that was filled by all the candidates including Ms. Nisha, copy Annexure P-1, for clearing the compartment paper in April, 1998, which was filled couple of months before the examination also laid down that the examination would be as per the new syllabi All the candidates who had been placed in compartment were bound by the regulations of the C.B.S.E. and did appear as per the regulations. The chart above would show that how many students appeared and how many passed. Ms. Nisha now cannot turn around after taking the examination that the examination held in April, 1998, under the new syllabi was a chance which was illusory.

On the other hand, learned counsel for respondent Ms. Nisha argued that to make effective the new chances under Bye-law 42(1), the chances are to be meaningful. If regulation is to be read in that manner, then the initial examination as well as the examinations where two chances are given have to be with the same syllabus.

After hearing the learned counsel for the Parties, we arc of the view that there is substance in the argument of the learned counsel for the appellant. Learned single Judge upheld the vires of Bye-law 42(iii), which, accordingly to us, is unassailable. That being so, all the students who are placed in compartment are bound by the regulations and, therefore, regulation cannot be laid down to mean that the second chance for clearing the compartment has to be with the same syllabus as was original when the first examination is taken by acandidate. All the candidates are supposed to know what the regulations are and as a matter of abundant caution, they are also apprised when they fill in the form for the examination for clearing the compartment second time that the new syllabus would be applicable to them. The chart would show that many students appeared under the new syllabus and a sizeable number also passed the said examination. Either the examination held by the C.B.S.E. is legal and valid or invalid. If the examination is invalid, it would be invalid for all the candidates. All the candidates who have passed the examination would naturally be affected if it is held that the examination was invalid. Even two writ petitioners passed the said examination. Sufficient time is given to the students when they fill in the form second time that they may prepare according to the new syllabus, if any. The Courts cannot rewrite the provision of law. Otherwise also, Ms. Nisha having taken chance to appear in the examination in April, 1988, under the new syllabus cannot turn around and say that such a chance was ineffective or nugatory. Even two of her co-petitioners passed the examination and did not pursue the writ petition.

For the foregoing reasons, we allow this Letters Patent Appeal and set aside the judgment of the learned single Judge and dismiss the writ petition qua petitioner No. 3, Ms. Nisha (respondent No. I in the Letters Patent Appeal), There will be no order as to costs.