Kumari Sradhanjali Jena and Others vs State of Orissa and Others

P. K. Mohanty, J.—The writ petitioners are the students of B. C. High School, who had filed up their forms for appearing at the High School Certificate Examination, 2003, conducted by the Board of Secondary Education, Orissa. The rejection of their application to sit for the examination by letter dated 15.3.2003 of the Board (Annexure-1) has brought them before this Court.

The brief fact of the petitioners'' case is that they were the students of Class IX in P. N. Sanskrit Bidyalaya, Bemunda in the district of Balasore, but since the school was closed, the Government, having not extended recognition, they obtained Transfer Certificates and others those were duly countersigned by the Inspector of Schools, they applied for admission to B.C. High School in Class X. But because of some doubts raised by the Headmaster and on the request of Headmaster, P. N. Sanskrit Bidyalaya the Inspector of Schools in his letter dated 29.7.2002 (Annexure-3) advised the Headmaster, B..C. High School to admit such students on production of T.C. duly counter-signed and availability of seats. On receipt of the letter of the Inspector of Schools, the petitioners were admitted to Class X of the said School and prosecuted their studies, whereafter they filled up the application forms, which were recommended to the Board of Secondary Education (hereinafter called "the Board") for allowing them to take the H..S.C. Examination, 2003. The petitioners were allotted roll numbers in the said examination but by letter dated 15.3.2003, their applications have been illegally rejected on the ground that they were not eligible under Chapter X of the Boards'' Regulation to sit for the H.S.C. Examination. Hence, the writ petition.

Opposite parties 1 and 2 have filed their joint counter affidavits denying the allegations and claim made by the petitioners. It is their case that on receipt of application forms from opp. party No. 5 school, the descriptive rolls as in case of other schools were detached and sent to computers for assigning roll numbers, pending scrutiny of terms. But at the time of scrutiny, it was detected that the four petitioners were admitted to Class X of B.C. High School on the basis of transfer certificates issued by P. N. Sanskrit Bidyapitha, which was not a recognised school and that the letter of the Inspector allowing admission, did not clearly spell out to which class such students should be admitted. The Headmaster without going through the contents and spirit of the letter, admitted the petitioners contrary to Regulation 6(a) of Chapter X of the Board Regulation. Such admissions therefore are illegal and the petitioners having not studied in a recognised High School in Class IX, inasmuch as the alleged attendance in Class IX and marks secured in the class examinations are false. The application for permission to appear at the H.S.C. examination has rightly been rejected.

In course of hearing, by order dated 20.8.2003, we directed the learned counsel for the Board to inform the Court as to whether the petitioners would not be considered as private candidates in terms of Regulation 6(a) of Chapter X of Boards'' Regulation on the next date of hearing. The learned counsel Sri S. Das submitted on 25.8.2003 that the petitioners cannot be treated as private candidates since there is no provision in the Boards'' Regulation for private appearance and therefore we directed the President of the Board to file an affidavit indicating therein, as to whether, the private H.S.C. Examination is still in vague and the relevant provisions. Pursuant to such direction, the president of the Board vide Notification dated 19.1.1984 published in Orissa Gazette dated 28.1.1984 has brought out an amendment in Chapter X of the regulation in the following manner :

"In Section III after Regulation 34-A, the following new Regulation shall be inserted namely;

"34-B. Subject to Regulation 34-A, no new enrolment of private candidate''s under old course (course of study, 1980) shall be allowed for High School Certificate Examination, 1984 and onwards All private candidates shall come through correspondence course as External candidates with effect from the Annual High School Certificate Examination, 1984".

A copy of the Notification has been annexed as Annexure-A/2 to the affidavit and it is asserted that in view of the amendment, the provisions for appearing at.the H.S.C. Examination for private candidates under Regulation 6(e) has been deleted and no private candidates are being allowed to appear since 1984 onwards.

In view of the pleadings of the parties, the core question for determination is, as to (a) whether the petitioners are entitled under the Boards Regulation to sit for the examination as regular candidates (b) as to whether the petitioners could be treated as private candidate in the situation in question and (c) as to whether, if not as private candidates, they could be allowed to sit for the examination as external candidates under the correspondence course.

Chapter X of the Regulations of the Board of Secondary Education, Orissa deals with New Regulation for the H.S.C. Examination, 1981 onwards. Section 1 is the General Regulation. Regulation 6 provides for the categories of candidates to whom the H.S.C. Examination . shall be opened. Clause 6(a) deals with Regular candidates, Clause (b) Ex-Regular candidates, (c) quashi-Regular candidates, (d) external candidates and (e) for private candidates. Clauses (d) and {e) which are relevant for our purpose may be quoted hereunder

"6(d) External candidates, that is, candidates who were duly enrolled for the correspondence course run by the Board and certified by the Director of Correspondence Course to be competent to sit for the examination.

(e) Private candidates, that is, (i) candidates who have not attended any recognised High School for at least 365 days previous to the date of commencement of the High School Certificate Examination, provided such candidates produce satisfactory evidence before the Headmaster/Headmistress of the High Schools at which they will have to appear for the Test Examination, that they have prosecuted a regular course of study for at least one school year within the State of Orissa or under any other Board recognised by the Board of Secondary Education, Orissa and have been subject to school discipline

(ii) Candidates who failed the Matriculation Examination of the Utkal University or at the High School Certificate or Higher Secondary School Certificate Examination of the Board at any examination prior to the Examination . of 1981."

Section III, Chapter X of the Regulation deals with External candidates and correspondence course candidates. Regulation 34 -requires a certificate from the head of the institution which is authorised to conduct test examination from private candidates and under Regulation 34(a), all private candidates desiring to appear in the High School Certificate Examination of 1983 and onwards shall appear in the new courses of study, but however under the proviso thereto, the failed private candidates who appeared under the old course 1980 were given two more chances.

Regulation 34-B was inserted by way of an amendment which came into force from 28.1.1984, when it was published in the Orissa Gazette. But interestingly, this Regulation 34-B is sought to be inserted after Regulation 34-A, but there is no provision in Chapter X of the Board''s Regulation as Regulation 34A. The amendment appears to have been brought under a misconception that there existed a provision, in the Regulation as Regulation 34-A. Since there is no provision as Regulation 34-A, question of insertion of Regulation 34-B after Regulation 34-A does not arise. The Board. authorities appears to have proceeded and acted in a total misconception that Regulation 34 B has been introduced to the regulation and further on a misconception that private appearance of the H.S.C. Examination has been prohibited since after 1983, even assuming that 34-B was rightly introduced in the regulations. Regulation 34-B may be quoted hereunder for better appreciation.

"34-B subject to regulation 34-A, no new enrolment of private candidates under old course (Courses of Study 1980) shall be allowed for High School Certificate Examination, 1984 and onwards. All private candidates shall come through Correspondence course as External candidates with effect from the Annual High School Certificate Examination, 1984."

A plain reading of the aforesaid Regulation 34-B makes it clear that subject to regulation 34-A no new enrolment of private candidates under Old Course (Courses of Study, 1980) shall be allowed for H.S.C. Examination, 1984 and onwards and all private candidates hereto come through correspondence courses as external candidates with effect from H.S.C. Examination, 1984, What has been prohibited under the new regulation is enrolment of private candidates under old courses of study, 1980 and all such candidates, meaning candidates from old course of study shall come through correspondence course as external candidates. We do not read anything in the regulation which prohibited enrolment of private candidates altogether. Otherwise also, the prohibition could not be made, since the regulations 6(e) and 34 authorising private appearance have never been deleted from the regulation nor the purported new regulation 34-B supersedes those regulations either directly or by implication. But it appears that the Board authorities on a fully misconceived notion, have abolished private appearance which was available under the statute and have introduced correspondence course for external candidates coming under Regulation 6(d). This, in our considered opinion, is a very sad state of affairs as to how the Board authorities as well as the State Government in the appropriate department are dealing with the conduct of examinations at the secondary level and as to how and the care that is taken to bring about amendments to the regulations. A regulation like 34-B has been sought to be inserted after Regulation 34-A, while as a matter of fact, there is no regulation as 34-A. Even the inserted provision even if prohibited candidates from appearing at H.S.C. Examination under the old 1980 course of study since 1984, It has been interpreted to have prohibited all private appearance in face of Regulation 6(e) and 34.

However, the question comes, as to whether in view of the fact that the Board authorities have abandoned and prohibited private appearance in H.S.C. examination since 1984, even illegally on a misconception and misinterpretation of the provisions of regulation, whether at this stage after the practice has been followed for about 20 years, the Court would be justified in allowing such appearance at this stage. It is the settled principle of law that a long standing uninterrupted practice and status obtained for decades assumes validity and the settled position should not be disturbed unless it becomes absolutely inescapable in the interest of justice. Accordingly, we are of the considered opinion that the Court should refrain from unsettling such long standing practice, but however we record a note of caution to the concerned Board authorities and the State Government to be careful in dealing with the matter of examination and in making provisions in Regulations in academic matter. It needs no emphasis that a regulation needs to be clear and unambiguous, intelligible to a common man and the authorities in charge should apply their mind with care and caution.

This brings us to the next question as to how the present set of petitioner are to be dealt with in the peculiar facts of this case. The petitioners were prosecuting their studies in an unrecognised school in Class IX and had taken the class test and have passed the class examination and at this stage, the school was closed since Government appears to have refused recognition. They obtained Transfer certificate from the said school, the Transfer Certificate was counter-signed by the Inspector of Schools and in addition, the Inspector of Schools advised the Headmaster of the B.C. High School, a recognised school, where the petitioners sought to be admitted to Class X to admit them in his letter dated 29.7.2002, pursuant to which, they have been admitted to Class X, prosecuted their studies and filled up their forms through that school to be admitted to the H.S.C. Examination, 2003. Petitioners were assigned roll numbers but during scrutiny, the fact of their inelligibility came to the notice of the Board for which their applications have been rejected. These facts have been admitted. The petitioners at no stage suppressed any material facts either before the B.C. High School or the Inspector of Schools and the Inspector of Schools having counter-signed the Transfer Certificate and advised the Headmaster to admit, they have been admitted to the recognised school and filled up their forms for taking their examination. At this stage only, they have been told that they are not eligible to take the examination, for which they approached this Court. Since the examination was to commence from 25.3.2003, this Court by order dated 24.3.2002 allowed them to take the examination with the condition that they shall not claim any equity. They have appeared at the examination but the results have been withheld.

The petitioners students have learnt that in this peculiar situation their career is at stake due to their negligence in getting admitted in Class-IX in an unrecognised school perhaps with a hope that it may get the recognition from the State Government as well as the Board. When they lost hope, they wanted to switch over to a recognised school and continue their study in Class-X, the Inspector of School, without applying his mind, negligently allowed them to take admission by counter-signing the Transfer Certificate as if the school from which they were getting transferred is a recognised one and further by advising in his letter to the Headmaster of school to admit such students to Class-X in terms of the T.C. Had the Inspector being little vigilant and conscious of the requirements of Boards regulation, he would have refused such permission and the petitioners-students, instead of getting admitted to Class-X, could have admitted into Class-IX in which event this situation would not have come. In any event, it appears that the petitioners become victims of this peculiar circumstances and need consideration.

It appears that under clause (c) of Board''s Regulation 6, a student of Class-X of a High School of which Class-VIII has been recognised by the competent authority, on prior permission obtained by the head of institution can appear and take the HSC Examination as a quasi Regular candidate subject to certain terms and conditions laid therein. The petitioners have studied in Class-X of a regular recognised High School in the fortuitous circumstances as discussed hereinbefore. In such a peculiar case, we direct the Board, opp. party No. 2, to treat the petitioners as quasi regular candidates as a special case in the peculiar circumstances and declare their results within a fortnight from the date of communication of this order.

Before parting with the case, we would like to observe that the educational authorities while dealing with students and their career at the Secondary School level should be careful and guide them in a proper manner with circumspection and should not be indifferent and impersonal. The opp. parties should however, take appropriate steps in rectifying the anamolies and defects in the regulations discussed earlier, if so advised.

The writ petition is thus allowed to the extent indicated above but there shall be no order as to cost.

P. K. Misra, J.

I agree.