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Judgment
K.M. Thaker, J.—In present petition, the petitioner has prayed, inter alia, that:-
21A. Your Lordships may be pleased to issue a writ of certiorari quashing and setting aside the new 2012 measures in relation to pattern and standard of examinations in the four semesters of 11th and 12th standards science stream as circulated in respondent no. 2''s circular dated nil-09.2012.
B. Your Lordships may be pleased to declare the new 2012 measures in relation to pattern and standard of examinations in the four semesters of 11th and 12th standards science stream as circulated in respondent no. 2''s circular dated nil-09.2012 as illegal, irrational and smacks of abuse of power and thus violative of Article 14 of the Constitution.
The petitioner has averred, inter alia, that in July 2011, the respondent No. 2 issued a circular dated 11.7.2011 introducing certain measures relating to pattern of examinations for science stream for 11th Std. and 12th Std. It is also averred that according to the said circular, if any student failed to obtain minimum 33 marks (Grade-D) in any paper of any subject in any semester, then, such student will be required to appear in the repeat examination of relevant paper. It is also averred that according to the said circular, a student, who failed (i.e. failed to secure 33 marks) in any subject in 1st semester, would get a chance to appear in repeat examination in 3rd semester alongwith examination for the 3rd semester and if a student failed (i.e. failed to secure 33 marks) in any paper in any subject in 2nd semester, then, he would get a chance to appear in repeat examination in the 4th semester alongwith 4th semester examination.
1.1 The petitioner has also claimed that thereafter, the respondent issued another circular in September-2012 whereby another set of measures as regards examination, came to be introduced with clarification/stipulation that they would be applicable to the examinations which will commence in April-2013.
1.2 The petitioner has claimed that vide said circular (issued in September-2012), the respondent Board prescribed that for declaring a student successful in a subject, average of total marks obtained in each subject in all 4 semesters will be taken into account. According to the said norms, if a student obtained atleast or minimum 132 marks in a subject (in aggregate in all 4 semesters), then, he can secure average 33 marks per semester in such subject and he will be granted Grade-D i.e. he will be declared pass.
1.3 Thus, the initial/original requirement of obtaining minimum 33 marks in each subject in each semester has been slightly diluted and instead the respondent Board has provided that a student who was required to secure minimum 33 marks in subject in each semester can, after the circular issued in September, 2012, afford to secure less than 33 marks in any semester and then he can cover the ground by securing more marks in same subject in next/other semesters so that the total of the marks obtained in all 4 semesters can fetch average of 33 marks per semester because from April, 2013 the respondent Board will consider average of marks obtained in all 4 semesters and if such average of marks reach 33 marks per semester then the student will be declared pass.
1.4 The said circular of September-2012 also provide that the students, who are not able to secure average 33 marks in any subject, then for such student supplementary examination will be held at the end of 4th semester.
1.5 The petitioner has preferred present petition against the said circular of September-2012.
The petitioner is aggrieved by the said circular and the measures sought to be introduced by the respondent Board, by virtue of said circular issued in September-2012. According to the petitioner, the said circular which came to be issued in September-2012 would deprive the students from improving their performance which they could have been able to do, if the system of allowing the students to appear in the repeat examination in 3rd and 4th semester was continued.
2.1 The petitioner has, inter alia, averred in the petition that:-
5........The circular explained that semester system is introduced in 11th and 12th standard and also deal with the examination norms. Some of the measures introduced in relation to standard and pattern of examinations in all the four semesters inter alia are as under.
(i) The 11th and 12th science stream will be divided into four semesters. The first and the third semester examination will consist of objective questions and second and fourth semester examination will consist of objective and descriptive questions. Students appearing in these semesters will have to acquire in each paper grade D i.e. 33 marks to be qualified for a pass.
(ii) In case if any student is unable to obtain the aforesaid minimum marks of 33 in any semester in any paper of a subject, then he will have to reappear in the examination in the relevant paper of the subject. A student who has failed in the first semester will be allowed to take repeat examination in the third semester along with the third semester examination. Similarly, a student who has failed in any paper in the second semester papers will be allowed to take repeat examination the fourth semester examination. However in case if a student does not clear the backlog in the re-examination, then he will be given two more chances to clear the backlog. This opportunity will be given to the students after the final examination of the fourth semester which should be cleared within a period of one year after the completion of fourth semester examination.
(iii) Each and every semester will be given 25% of weightage for determining the aggregate marks for higher secondary examination.
The petitioner states that he cleared the first semester examination of standard 11th with flying colours as he scored 533 marks out of 650 (82%). The petitioner stood first in his class. A copy of the first semester examination certificate is annexed hereto and marked as Annexure-B.
However, in the second semester of 11th standard the petitioner lost his confidence and concentration as he feared that he will not fare well in the second semester examination. Due to this he started suffering from mental stress and had to undergo counseling. As a result, he could not focus on his second semester examination and he failed in three subjects. A copy of the certificate of the second semester examination is annexed hereto and marked as Annexure-C.
The petitioner however, saw more light at the end of the tunnel as he had a chance to improve his performance in the three failed papers in the fourth semester along with the fourth semester examination as per the aforesaid 2011 measures. The petitioner was promoted to the third semester of 12th standard but took a drop of one year. This decision was taken after consulting the school principal, Shri G.M. Rabari, Examination Head and Shri Dinesh Patel, Surat District Education Officer.
...
Much to the frustration of the legitimate expectation of the petitioner, on the basis of the resolution passed in the joint sitting of the Education Committee and Examination Committee on 04.09.2012, the respondent No. 2 by its circular dated nil-09.2012 informed all the higher secondary schools having science stream about the new measures (For brevity "2012 measures") in relation to standard and pattern of examinations in the higher secondary. The norms which are relevant for the present case amongst other norms are as under:
(1) Average of marks obtained in each subject in all the four semesters will be taken. If a student obtains average of 33 marks or more in a subject will be declared as pass.
(2) If a student has acquired less than 33 average marks in any of the subjects, then he will be allowed to take re-examination after the fourth semester. The question paper will be set on the basis of the course prescribed for the third and fourth semester.
(3) A student who had taken admission in the first and second semesters but could not appear in the examination as he/she was absent due to valid reasons, he/she shall be allowed to take examination in the next semester. If he/she is absent in the third and fourth semesters, then the re-examination will be conducted after the fourth semester.
(4) The examination pattern for the second and fourth semesters is changed and it is made effective from April 2013. Now in the second and fourth semester examination 50% weightage will be given to the objective questions which will have to be filled in Optical Mark Reader (OMR) Sheet and 50% weightage to descriptive questions.
(5) The provision has been made to change from group A to group B and vice a versa which is made effective from June 2013.
MR. Mehta, learned Senior Counsel, has appeared for the petitioner and submitted that the modification introduced by the respondent Board vide circular issued in September-2012 amounts to introducing change with retrospective effect which is impermissible. He also submitted that the petitioner would be deprived of the opportunity of appearing in repeat examination. Learned Senior Counsel for the petitioner, however, conceded to the respondent''s submission that, actually, the impugned circular is more liberal and more favourable for the students. Learned advocate for the petitioner would, however, submit that though the new provisions are lenient and favourable to the students, it also deprives student like the petitioner of their chance to appear in repeat examination and therefore, the impugned measures circular deserve to be set aside. Learned Senior Counsel for the petitioner also submitted that by virtue of the circular issued in July-2011, a right had accrued in favour of the student''s which is taken away by the impugned circular issued in September-2012 and therefore also, the said circular deserves to be set aside.
The respondent Board has opposed the petition. Reply affidavit has been filed stating the reasons and circumstances in view of which the respondent Board considered it appropriate to issue the circular in September-2012. The respondent Board has stated, inter alia, that:-
I say and submit that none of the fundamental rights, much less legal rights of the petitioner has been violated by the respondent Board. I say and submit that the policy dated 07.09.2012, impugned in the petition, is absolutely just, proper and correct and the said decision is taken in the larger interest of students as well as education. I say and submit that the said policy decision is being taken by the Education Committee as well as the Examination Committee of the respondent Board in its meeting held on 04.09.2012. I say and submit that the said decision is taken in light of several representations being received by the Board with regard to the introduction of semester system in Std. XI & XII of science stream. I say and submit that in the first semester of Std. XI the result was 89.5% and out of 1,19,697 students 1,56,437 students passed and 13,260 students failed in the first semester examination. I further say and submit that however in the second semester of Std. XI, the result went down to 61.27% and more than 40,000 students failed in the said semester.
I say and submit that after the declaration of results of the second semester, several representations were received by the Board with regard to the semester system and several suggestive methods were suggested by parents of students. I crave leave of this Hon''ble Court to refer to and rely upon several such representations made to the Board at the time of hearing of this petition. I say and submit that after receipt of such representations, the Education Committee as well as the Examination Committee of Board, as stated hereinabove, met on 04.09.2012 and a decision was taken by the experts in the nature of the policy, which is impugned in the petition. I say and submit that the said decision is taken by the Board in the overall interest of students and education at large and the same is not contrary to the provisions of law. The said policy decision is taken in consonance with the provisions of law and keeping in mind the larger interest of students and education. I say and submit that not a single student/parent has raised any grievance with regard to the said policy decision dated 07.09.2012 except the present petitioner, who has filed the present petition. I say and submit that even in the representation made by the parent of the petitioner to the Board, the parent of the petitioner has in terms stated that the introduction of policy decision being communication dated 07.09.2012 is very favourable to the students who have failed in the first and second semester examination. I say and submit that except the petitioner nobody else has raised any grievance with regard to the policy decision dated 07.09.2012. I say and submit that the Board is within its powers to take policy decision and the said policy decision is taken keeping in mind the overall interest of students and education at large. It is a settled principle of law that generally the Courts ought not to interfere with the policy decision, especially when the said decisions are being taken in the larger interest of students and education at large. I say and submit that the said policy decision impugned in this petition may kindly be upheld in the interest and administration of justice as the same is going to help large number of students, especially when no one else has raised or voiced any grievance with regard to the said policy decision except the present petitioner.
Mr. Oza, learned advocate for the respondent Board also submitted that the respondent Board has to take into account interest of all students while taking any decision and forming any policy. If few students or a small group of students find the erstwhile policy better than the modified new policy as against the total group of students for whom the policy is more beneficial, then, the Board has to proceed by keeping in focus the interest of larger group, rather than small faction of students and keeping the said criterion in focus, the respondent Board has issued the impugned circular.
The rational behind the policy and details about the working and implementation of the policy introduced vide circular issued in September-2012 is explained by the respondent Board in the further affidavit where the deponent has averred that:-
3....On account of that the Board had received several representations from students, parents and management of the schools on the framework of the examination and also on the semester system itself. The Board had examined those representations, suggestions, etc. and put up and item bearing item No: 113/2012 before the Joint Committee of Educational Committee and Examination Committee for deliberations. Both the Committee met together on 4.9.2012 and deliberated on several aspects and taken several decision and accordingly the new policy was circulated under circular dated 7.9.2012. It was decided to declare student to have passed in a particular subject only after the examination of fourth semesters if he/she secures 132 or more marks in aggregate out of 400 marks. This has been done in the overall interest of the students as in the earlier policy, student had to clear the backlog after a gap of almost one year and backlog in more than one subjects of I, II and III Semesters would create tremendous pressure on the student.
I further say and submit that under the new policy, the Board has done away with the pass and fail at the end of I, II and III semester and in the present case, the petitioner is now not having backlog in the subjects in which he has secured less than 33 marks i.e. D-grade in his II Semester. Hence, the petitioner is not be required to reappear or cannot reappear in the subjects in which he has secured less than 33 marks in the second semester. I further say that the petitioner has failed to appreciate that under the old or the new policy, there is no provision to reappear in the examination to improve the performance as represented in the present petition. It was available to only those who failed or in other words secured less than 33 marks, to clear the backlog. In the present case, now the petitioner has no backlog, he cannot insist to reappear in the examination to improve his performance as it would open floodgates for others who have otherwise secured more than 33 marks and not satisfied with that and want to improve their marks/scores.
I have considered the rival submissions and the material on record of present petition as well as two circulars issued by the respondent Board.
7.1 It has emerged from the record that, the respondent Board for the first time introduced semester system in standard 11th and 12th w.e.f. June-2011. It appears that the said change was recommended by the Committee, which was constituted for the purpose of suggesting appropriate changes in examination system and the curriculum for 11th and 12th standard.
7.2 Upon introduction of the semester system, 11th and 12th standard of science stream came to be divided into 4 semesters.
7.3 It also provided that to be qualified for Grade-D (i.e. pass), a student will have to acquire minimum 33 marks in each paper/subject in each semester. A student, who is unable to obtain minimum 33 marks in any paper in any stream had to appear in the repeat examination.
7.4 Thus, the subject in which a student could not secure 33 marks was considered as backlog for the said student and he was obliged to appear in repeat examination in 3rd or 4th semester, as the case may be, so as to clear the backlog.
7.5 It appears that the respondent Board received various suggestions/complaints/grievances, etc. with regard to the guidelines issued in July-2011 and the respondent Board also noticed that the said guidelines affected results of the students. Therefore, certain modifications were considered and after proper discussions and deliberations, the respondent Board issued another circular in September-2012 whereby certain modified measures came to be introduced (vide circular issued in September, 2012) which would be effective from April, 2013.
So as to appreciate the grievance made and relief prayed for by the petitioner, it is necessary and relevant to take into account some facts of the case of the petitioner.
8.1 The petitioner has claimed that he cleared the 1st semester examination of standard 11 by securing about 82% marks (533/650).
8.2 The petitioner, however, failed in 3 subjects in the 2nd semester.
8.3 The petitioner was promoted to 12th standard i.e. 3rd semester.
8.4 Now, at this stage, it is very relevant to note that despite the fact that in second semester/11th standard, the petitioner had failed in 3 subjects (i.e. had secured less than 33 marks in 3 subjects), he was promoted to 12th standard i.e. 3rd semester.
Another and more important factual aspect required to be mentioned and taken into account is the fact that though the petitioner was, as aforesaid, promoted to 12th standard i.e. 3rd semester, instead of prosecuting study in 3rd semester, petitioner voluntarily took a drop of one year, i.e. not of one semester but one year.
Thus, it is the petitioner who has voluntarily allowed one whole academic year just past-by without prosecuting study, though he was promoted to 3rd semester i.e. 12th standard.
8.5 In this background, the petitioner now claims that according to the circular issued in 2011, he had opportunity of appearing in repeat examination at the time of examination of 4th semester, however, because of the introduction of circular issued in September-2012, he would not get such opportunity.
8.6 According to the said circular issued in September-2012, average of total marks obtained in 4 semesters is to be taken into consideration.
8.7 As a result of the said modification, if a student is not able to secure minimum 33 marks in any semester''s, but if he can secure atleast 132 marks as aggregate in all 4 semester''s and thereby he can secure average of 33 marks per semester then, he would be declared pass because average of total marks obtained in 4 semesters will be taken into consideration as per the modified norms.
8.8 Moreover, despite such provision, if the student is not able to secure average of 33 marks per semester in any subject, then, the student will be allowed a chance to appear in the re-examination immediately after 4th semester.
8.9 Thus, the original provision of allowing the student to appear in re-examination at the 4th semester (if he fails to secure 33 marks in any subject in any semester) is not withdrawn but it is maintained. In this context, the response-clarification by respondent board deserves to be recalled. The board has stated that:-
I say and submit that the Board has not changed its earlier policy decision, but, has modified the same taking into consideration the larger interest of students in mind.
On examination of the said circular issued in September 2012 and on its comparison with circular issued in July 2011 it emerges that the burden on the student to secure minimum 32 marks in each semester is now spread over in four semesters, which results into reducing the burden and stress on the student and it also releases the student from the burden of carrying the backlog into the next semester.
9.1 On the other hand the requirement to obtain average 33 marks in all subjects in all 4 semester is still maintained, but it is-in effect-spread over 4 semesters. The standard for granting grade-D to a student only if the student secures minimum 33 marks is not withdrawn, but it is converted into "average" basis.
9.2 Similarly the chance or opportunity to cover the lost ground is also not taken away inasmuch as the student can work hard in next semester''s (for the subject in which he could not secure 33 marks in any semester) and by securing more marks (in following next semester) so as to reach total of atleast 132 total marks in the subject as total/aggregate marks in 4 semester, he can ensure that he will reach/secure average of 33 marks per semester.
9.3 Thus, the policy is not such which can be said to be less favourable to students or such which would adversely affect their interests.
9.4 On the contrary, it appears to be undisputed position that the measures declared vide circular issued in September, 2012 are lenient and more favourable to and convenient for the students.
9.5 In this context, it is appropriate to recall that even the learned Counsel for the petitioner acknowledges and admits the fact that the new system is lenient and more favourable and convenient for the students.
9.6 In this context, it will not be out of place to recall one factual aspect mentioned by the Board in its affidavit. It is mentioned that:-
I say and submit that not a single student/parent has raised any grievance with regard to the said policy decision dated 07.09.2012 except the present petitioner, who has filed the present petition...........the parent of the petitioner has in terms stated that the introduction of policy decision being communication dated 07.09.2012 is very favourable to the students who have failed in the first and second semester examination. I say and submit that except the petitioner nobody else has raised any grievance with regard to the policy decision dated 07.09.2012.
9.7 It appears that as per the policy the petitioner had the opportunity in 3rd semester to be recover the lost ground by securing more marks and then he would also get chance-opportunity in 4th semester as well (since he failed in 2nd semester) to obtain more marks in three subjects which would ensure requisite average of 33 marks in all 3 subjects.
9.8 However, the petitioner, though promoted (despite having failed in 3 subjects in 2nd semester) to 3rd semester/12th standard voluntarily took a drop for 1 year. It is pertinent that the petitioner appeared in and cleared 1st semester (11th standard) in October-2011. Then, he appeared in examination of 2nd semester (11th standard) in April-2012 and failed in 3 subjects. Despite this, he was promoted to 3rd semester/12th standard and in ordinary course, he could have appeared in the examination held in October/November-2012, but he opted out and took a drop for one year.
It has also emerged from the reply affidavits filed by the respondent Board that it was in view of various representations received from the students, institutions and in view of the experience derived from the working of the previous policy that the respondent Board considered it appropriate to make necessary modification in the policy, which is reflected in the circular issued in September-2012.
10.1 So far as the merits of the policy is concerned, the Court is not equipped with the expertise to decide whether it is proper and technically sound or not. These are the subjects and issues in the realm of experts in field of education and Court cannot substitute its own views in place of decision of the experts and the Court also cannot act as appellate authority in respect of policy decision so as to decide whether it is defective or destructive for education system or it is prudent and appropriate for country''s requirement and students'' future. On this count, it is appropriate to consider the observations by the Hon''ble Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, , wherein the Hon''ble Apex Court has observed that:-
...the Court should be extremely reluctant to substitute its own views as to what is wise prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-today working of educational institutions and the departments controlling them.
In the decision in case between Dr. J.P. Kulshreshtha and Others Vs. Chancellor, Allahabad University and Others, , the Hon''ble Apex Court sounded word of caution and observed that:-
judges must not rush in where even educationists fear to tread.... While there is no absolute bar, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.
So far as the petitioner''s contention that the opportunity to improve performance is taken away is concerned, the said submission appears to be misconceived, inasmuch as the option of taking into account average of marks in all 4 semesters does not result into depriving a student from improving his performance. If a student is not able to secure 33 marks in a subject in 1st semester then he would be automatically and compulsorily obliged to improve his performance in following/next semesters so as to gain the ground lost in past/previous semester. Moreover, the claim of opportunity to "improve performance" is essentially a misnomer and euphemism for "second attempt upon having failed in examination. The students who secure minimum 33 marks and are given Grade-D do not seek to appear/do not appear in repeat examination "to improve performance" and to secure more marks, but only those students who fail to secure 33 marks, appear in repeat examination. For such students, the opportunity is not taken away and the circular of September, 2012 as well as Board''s affidavit make it clear that the opportunity is still available, rather in more lenient, favourable and convenient form the student who fails to secure 33 marks in one semester can work/prepare more and can put-in hard practice and secure more mark in next/following semester and thereby regain the lost ground, i.e. supplement the sort-fall of past/previous semester and if he still fails to achieve the requisite average, then, he will get another chance in form of repeat examination/re-examination immediately after examination of 4th semester. Thus, the said objection/contention does not appear to the Court. In the facts of the case and in light of the norms and terms of circular of September, 2012, it is not possible to hold that any opportunity is taken away. There is a modification, but the petitioner also could not claim, much less demonstrate, that the modification-is adverse to or against the interest of students.
10.2 Similarly, so far as the contention that the respondent Board cannot introduce policy with retrospective effect is concerned, the said contention is also not sustainable because the provision under the circular issued in September-2012 are to become effective from examination which would commence from April-2013, i.e. after almost six months. Thus, the students have had notice of six months and that therefore, it cannot be said to be within retrospective effect.
The norms are not going to be applied to the examinations held before its introduction, but will be applicable to and from the examination to be held 6 months after the date of circular.
Thus, the said circular is prospective and is provided atleast six months'' notice to the students. Thus, it is not possible to hold that it has retrospective effect and/or that modification is introduced without notice and suddenly. Moreover, the circular and the modifications do not adversely affect the interest of students.
In this context, the learned Senior Counsel for the petitioner made reference of order dated 6.2.2013 in Special Civil Application No. 13486 of 2012. However, in view of substantial difference between the facts of the cited case and present case, the decision cannot help the petitioner. In the said case, the petitioner had submitted/filed application for reassessment, i.e. the petitioner had "applied for reassessment on 16.7.2012" and the new rules regarding reassessment came into force from 18.8.2012, i.e. after the date of the application. Thus, when the new rules came into force, the examination was already over and even the result was already declared and on top of all such facts, the student-petitioner had even submitted the application for reassessment before the new rules came into force. Since, despite such factual background, when the university applied the new rules to petitioner''s application which was filed before introduction of rules, the Hon''ble Court disapproved the action of university. Whereas in present case, the circular came to be issued and norms came to be introduced in September-2012 and they would be effective from April, 2013, i.e. after almost 6 months. Thus, the set of facts in the cited case are materially different from the facts of present case. In the cited case, the examinations were already held and concluded, petitioner had already appeared and even the results were declared and the application for reassessment was also submitted before the rules changed and yet changed rules came to be applied to the application and it was decided as per new rules. In the said case, the change was made without publication whereas in present case, the circular was issued and published well in advance, i.e. before 6 months and it has been duly/widely published. Thus, all relevant facts of present case are materially different and none of them help the petitioner to support the contention that the circular has retrospective effect and/or that available opportunity and right are taken away retrospectively.
10.3 Furthermore, when by virtue of the modification, any right or any privilege or any concession or benefit is not adversely affected, then, there is no cause or justification for the Court to interfere with such policy decision of the respondent Board.
10.4 Besides this, the respondent Board has to take decisions by keeping in focus interest of total group of students and the respondent Board cannot act as per restricted perception of a small faction of students.
10.5 In present case, it has also emerged from the record that the respondent Board took the decision and introduced the new policy in view of the requests and representations received from large number of students and institutes.
10.6 Thus, when the interest of any student, including the petitioner is not adversely effected by the impugned circular and the measures contained in the circular issued in September-2012 are to become effective from prospectively, i.e. future/forthcoming date and in respect of examinations to be held in April-May 2013 and since the student have had notice of atleast 6 months, the contention of the petitioner that change is introduced with retrospective effect also does not hold good and does not survive.
In view of the facts of the case and in light of the foregoing discussions and reasons, the Court does not find any reason to interfere with Board''s policy decision. Any case for interference is not made out. The request made by the petitioner (who voluntarily took a drop for one year) does not deserve to be entertained.
The petition fails and does not deserve to be accepted. Hence, the petitioner is rejected. Notice is discharged. No costs.