AI Structured Summary
Not yet generated for this judgment
Judgment
Harish Tandon, J.—The petitioner is a student of class-X in respondent No. 1 School and has assailed the action of the respondents in refusing the petitioner to fill up the form for the Madhyamik Parikha, 2012 and to appear therein.
The brief facts are that the petitioner is permitted to class-X and secured more than passing marks expect in Mathematics subject in all the unit tests. It is stated that if the marks obtained by the petitioner in Mathematics subject in first unit test, pre test and the test examination is taken, then the petitioner would get the aggregate 24% marks in the said subject. The West Bengal Board of Secondary Education (Examination) Regulation 2001 does not stipulate any passing marks for sending the student to appear in the Madhyamik Parikha. It is further stated that out of 110 students, 34 students have been allowed to fill up the forms after giving grace marks and one student who did not appear in the test examination on health ground is also allowed to fill up the form on the basis of his pass result.
By order dated December 23, 2011 this court directed the respondent school to allow the petitioner to fill up the forms and the West Bengal Board of Secondary Education, the respondent No. 4 was directed to accept the said form provisionally subject to the result of the writ application.
In affidavit-in-opposition affirmed by the respondent No. 3 on behalf of the school as well, it is stated that there is a consistent poor performance of the petitioner in Mathematics subject. It is further disputed that the marks which has been stated by the petitioner in the said writ petition to have obtained in the said subject is not correct. The respondent No. 3 states that the petitioner could not secure the qualifying marks for being promoted to class-X and as such was detained in the class IX. However, in the next year although the petitioner secured the poor marks but was promoted to class-X. It is denied that the respondent school has given any grace marks to any students.
It is submitted by the petitioner that West Bengal Board of Secondary Education (Examination) Regulation 2001, has defined ''test'' which is required to be held by the institutions at the end of the instruction of class-X to make him eligible as regular candidate to appear in the Madhymik Parikha. By placing reliance upon the judgment of the Supreme Court in case of Principal, Kendriya Vidyalaya & ors. vs. Saurabh Chaudhary & Ors. reported in 2009 (1) CHN 205 (SC) it is contended that the school can lay down the cut off marks for selection in the suitable stream/course for the student but it is quite unreasonable and unjust to throw out a student from the said school as he failed to get the cut off marks in class-X examination. It is further submitted that an application under Article 226 of the Constitution is maintainable as right to education is a constitutional right and put reliance upon a judgment of this court in case of Debasish Kar Gupta and Another Vs. State of West Bengal and Others, . It is lastly submitted that the school has unreasonably refused the petitioner to appear in the Madhyamik Parikha, 2012 whereas allowed some other student who did not appear in the test examination.
The school authorities vehemently opposed the writ petition by contending that the petitioner has performed purely in all the test so far as the madhyamik subject is concerned and for his betterment. The school authority have decided to withhold its permission to allow the petitioner to appear in the Madhyamik Parikha, 2012. By contending that the court should not permit the ineligible students to appear in the Board or University Examination by showing mercy or sympathy, reliance is placed upon a judgment of the Apex Court in case of Central Board of Secondary Education Vs. Nikhil Gulati and Another, .
Having considered the respective submissions, it is undisputed that the performance of the petitioner in Mathematics subject is consistently poor. Although the allegation is made in the writ petition that because of the refusal of the petitioner to avail the private tuition from the respondent No. 3 who is teaching the said subject, the petitioner has been subjected for such refusal but same could not be corroborated by the cogent documents. It is not undisputed that there is no prescribed procedure which the school has to adhere for the purpose of permitting the students to appear in the Madhyamik Parikha. Each institution adopts its own procedure and different qualifying pass marks are set. The respondent No. 4 is guided by its own regulation i.e. West Bengal Board of Secondary Education (Examination) Regulation 2001, which provides the parameters of eligibility of regular candidates as well as compartmental candidates to appear in the examination. Regulation 17 enshrined the eligibility of the regular candidates to appear in the examination which mandates that the candidate must passed the annual examination at the end of class-IX and test examination at the end of class-X. The candidate is defined as the person who is accorded permission by the Board to set the examination on his fulfillment of condition as may be specified. The test is also defined as such qualifying examination as is required to be held by an institution at the end of instruction of class-X which student shall have to qualify for the Madhyamik Parikha.
Regulation 12 provides the minimum marks to be obtained in the subject and an aggregate marks for being declared successful. It would be profitable to refer regulation 12 which reads thus:
The structure of the examination system- The structure of the examination system are specified below:
(i) Practical answer-scripts shall be assessed by the examiners for practical examination, but such scripts shall be finally assessed by the concerned Head Examiners who shall confirm the marks;
(ii) The method of assessment shall be numerical that is to say, in terms of marks, to be awarded by examiners in each subject;
(iii) In order to be declared successful in an examination, a candidate must obtain a minimum of 20 marks in a subject and 34 per cent marks in aggregate in each group of the compulsory subjects as prescribed in the curriculum;
(iv) If a candidate offers an additional subject and passes in it, the marks obtained by him in excess of 34 in the subject only shall be added for determining his Division. Provided that if a candidate fails to obtain at least 34 per cent marks in each group of compulsory subject, no such marks shall be added as aforesaid:
Provided further that failure/absence in the additional subject shall not affect the result of the candidate;
(v) the mark-sheet to be issued by the Board to a candidate shall contain marks obtained by him in each compulsory subject including additional subject, if any, offered by him;
(vi) the Board shall issue certificate in such form as may be decided upon by it to a candidate after he passes the examination;
(vii) if a candidate obtains 80 per cent marks in a subject, he shall be awarded ''Letter'' in the subject and the award shall be indicated in the mark-sheet;
(viii) if a candidate obtains 75 per cent marks in the aggregate, he shall be declared to have passed with ''Star'' which shall be indicated in the mark-sheet;
(ix) in order to be placed in the First Division, a successful candidate at least 60 per cent marks in the aggregate;
(x) in order to be placed in the Second Division, a successful candidate must obtain at least 45 per cent marks in the aggregate;
(xi) in order to be placed in the Third Division, a successful candidate must obtain at least 34 per cent marks in the aggregate;
(xii) final merit list of successful candidates shall be published after publication of the results of post-publication scrutiny. No further appeal shall be entertained in this regard;
(xiii) the results of the final examination shall be published in such form, and through such mode, as may be determined by the Board from time to time.
The cumulative effect of the aforesaid provision makes it clear that if the student is certified to have qualified the test examination at the end of class-X, the Board has no other option but to allow the said student to sit in the Madhyamik Parikha.
My endeavour has failed to find out any provision which mandates the adherence of the said regulation by the institution so far as the passing marks in each subject and the aggregate marks to appear in the Madhyamik Parikha. There is no uniformity as to the qualifying marks amongst the institutions as each of the institutions has set up their own procedure.
The school authority have stated that the performance of the petitioner in class-IX was unsatisfactory and as such was detained in the said class. The school authority further proceeded to contend that in spite of poor performance in the next year, the petitioner was promoted to class-X. There is no justification in permitting a student, who have been consistently performing poorly, to the next higher level and then withholding the same candidate as he has not performed well in the higher level. It is also the responsibility of the institution for the poor performance of the students if the performance has been found to be consistently poor. The aforesaid reason is fortified from a judgment of the Supreme Court in case of Principal, Kendriya Vidyalaya vs. Saurabh Chaudhary (supra) it is held:
One can have no objection to a school laying down cut off marks for selection of suitable stream/course for a student giving due regard to his/her aptitude as reflected from the class X marks where there are more than one stream. But it would be quite unreasonable and unjust to throw out a student from the school because he failed to get the cut off marks in the class X examination. After all the school must share at least some responsibility for the poor performance of its student and should help him in trying to do better in the next higher class. The school may of course give him the stream/course that may appear to be most suitable for him on the basis of the prescribed cut off marks.
One could also find from the result of the petitioner in pre test 2nd term and the test conducted at the end of class-X that apart from a poor performance in Mathematics Subject, the petitioner is an average student. The School Authority has not indicated that in spite of the persistent care an effort being put on the petitioner his performance has not improved. Although the court should not usurp the power to evaluate the performance of the student which is an exclusive domain of the educational institution as has been held in case of Central Board of Secondary Education v. Nikhil Gulati in these words:
Occasional aberrations such as these, whereby ineligible students are permitted, under Court orders, to undertake Board and/or University examinations, have caught the attention of this Court many a time. To add to it further, the Courts have almost always observed that the instance of such aberrations should not be treated as a precedent in future. Such casual discretions by the Court is nothing but an abuse of the process; more so when the High Court at its level itself becomes conscious that the decision was wrong and was not worth repeating as a precedent. And yet it is repeated time and again. Having said this much, we hope and trust that unless the High Court can justify its decision on principle and precept, it should better desist from passing such orders, for its puts the ''Rule of Law'' to a mockery, and promotes rather the ''Rule of Man''.
All the same, fond hopes were raised in the minds of the students herein. Therefore, we decline to interfere under Article 136 of the Constitution. The S.L.P''s. are, accordingly, dismissed.
The court should not be casual in exercising its discretion in permitting the ineligible candidate/student to appear in a board/university examination but the decision must withstand on rationality and/or on legal parameters. The test, as defined in the said regulation, is an examination held by the institution at the end of the instruction of Class X which the student has to qualify for Madhyamik Parikha. Literally, if a student qualifies the examination conducted by the school at the end of the instruction of Class X, then in terms of regulation 17 ( c) he is found eligible. Therefore, the school should not permit the student who did not appear in the test examination held at the end of the instruction of Class X. Such strict interpretation would render many ill-fated student who because of some unavoidable and/or compelling circumstances could not appear in the test examination but has consistently performed quite well in other examination conducted by the institution during the instruction of Class X.
In supplementary affidavit the petitioner has annexed the introduction of the Grade system on the basis of the recommendations in national curriculum framework, 2005 wherein it is specified that the institution would conduct three test of 40,60 & 100 marks for sending up the student for the said parikha. The aggregate marks which is obtained by a student would entitle him to qualify for the madhyamik parikha. It is a specific case of the petitioner that one of the student who did not appear in the final test examination was permitted to appear in the madhyamik parikha which has not been specifically denied in the affidavit in opposition filed by the school authorities. In view of such uncontroverted statement, if the institution has allowed one student who did not appear in the test examination, obviously because of his past performance, it would be unjust to deny the other student who has performed poorly in the test examination in one subject. Had it been a case that the performance of the petitioner in all the subject is through out unsatisfactory, the decision of the institution to withhold the said student from appearing in the madhyamik parikha could not be faulted with, but poor performance in one of the subject should not deter the said students for being disqualified where the institution also owes some responsibility for such poor performance. Therefore, the decisions of the institution in refusing to grant permission to fill up the form and to appear in the madhyamik examination to the petitioner is unjust and does not stand to reasoning.
By interim order the court permitted the petitioner to fill up the form and directed the board to accept the same provisionally subject to the result of the writ petition. Since this court finds the decision of the school authority to be incorrect, the board shall permit the petitioner to appear in the madhyamik parikha upon regularising the said form and shall permit the petitioner to appear in the board examination by treating him as a regular student.
The writ petition is thus allowed.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be give to the parties on priority basis.