Suman vs Board of School Education and Another

V.S. Aggarwal, J.—Petitioner Ms. Suman appeared in matriculation examination held by the Board of School Education Haryana (respondent No. 1) and had passed the same in March, 1996. During 1996-97, she could not pursue her studies on account of certain domestic problem. In 1997-98, she approached M.S. Sarswati Senior Secondary School, Rohtak (respondent No. 2). It is a recognised School. The petitioner''s case is that she disclosed to the school that she had not passed 10+1 examination from any school. However, she was given regular admission. She pursued her studies for 10+2 examination. At the end of the academic year, she submitted the examination form as a regular student. She was allowed to appear in 10+2 examination. It had not been disclosed or mentioned in the examination form that passing of 10+1 examination is a precondition for appearing in 10+2 examination. She appeared in the 10+2 examination without any objection. However, her candidature in 10+2 examination was cancelled on the ground that she was eligible to take 10+2 examination because she has not passed 10+1 examination. The petitioner challenges the said action of respondent No. 1 asserting that at no time she was told that passing of 10+1 examination from a recognised school is a necessary pre-condition. Had she been told, she would have applied under the Open School Scheme and passed the examination without any hurdle. She had not suppressed any fact. The syllabus under the Open School Scheme and the regular examination scheme is the same. Thus, it is asserted that the action of respondent No. 1 in cancelling the candidature of the petitioner is arbitrary, illegal and should be quashed.

The petition had been contested. In the reply filed by respondent No. 1, it was pointed out that earlier the petitioner had filed a civil suit on the same cause of action which was dismissed by the Civil Judge, Rohtak. She had preferred an appeal which was also dismissed. Thus, the petitioner is not entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution. As regards her eligibility to take 10+2 examination, it was pointed out that the petitioner had not passed the 11th class examination from any institution recognised by the respondent-Board. Therefore, she was not eligible to take 10+2 examination. It was further stated that the candidature of the petitioner could not be treated under the Open School Scheme because she appeared as a regular student and failed to satisfy the eligibility condition.

During the course of arguments, learned counsel for the petitioner highlighted the fact (a) the petitioner had never been told that there is eligibility condition for 10+2 examination, namely, that she should have passed 11th class from a recognised school and (b) had this fact been disclosed, she would have applied under the Open School Scheme in 10+2 examination. She had not suppressed any fact and the mistake, if any, was of respondent No. 1. She was even allowed to take the examination.

After hearing parties counsel, this Court is of the considered opinion that the plea of the petitioner is devoid of any merit. The contention that she should have been told that she cannot take 10+2 examination without passing 11th class from a recognised school is devoid of any merit. This is for the reason that when the petitioner took her admission in 10+2, namely, 12th class with respondent No. 2 school, no prior permission of respondent No. 1 had to be taken. Thus, she cannot put the blame on respondent No. 1. It is only when the mistake was detected that her candidature had to be cancelled. Once there was no representation on behalf of respondent No. 1, much less misrepresentation, the petitioner necessarily cannot blame any person but to herself. The eligibility clause pertaining to 10+2 examination reads as under :--

"5. Eligibility for the Examination :-- (a) (iii) has passed the eleventh class examination under 10+2 system of education from an institution / Board / University recognised by the Board on reciprocal basis not less than one Academic year previously".

Admittedly, the petitioner had not passed her 10+1 examination from any recognised institution. Necessarily, she could not take 10+2 examination.

Confronted with this position, it was urged that the petitioner had not suppressed any fact and had disclosed the same in the application form. At the appropriate time, same was not detected and she went on to take the final examination. It was too late in the day to cancel the candidature of the petitioner. Strong reliance was placed on the decision of the Supreme Court in the case of Shri Krishnan Vs. The Kurukshetra University, Kurukshetra, .The facts in the cited case were that before issuing the admission card to student to appear in Part I Law Examination, it was the duty of the University to scrutinise the admission form in order to find out if it was in order. It was the duty of the Head of the Department to make sure that there is shortage of percentage of lectures or not. The candidate was allowed to appear in Part II Law Examination. It was held that the authorities acquiesced in the infirmities and, therefore, the candidature could not be withdrawn.

The facts of the cited case are basically different. Therein, the Head of the Department was supposed to certify that the candidate had attended the necessary percentage of lectures or not. Shri Krishan had not suppressed any fact. This promoted the Apex Court to give the abovesaid finding. In paragraph 7 of the judgment, the Supreme Court held as under :--

"...... It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi or suppresslo veri. The appellant never wrote to the University authorities that he had attended the prescribe number of lectures. There was ample time and opportunity for the University authorities to have found out the defect. In these circumstances, therefore, if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I Examination in April, 1972, then by force of the University Statute the University had no power to withdraw the candidature of the appellant ....."

This is not the position in the present case in hand. In the present case in hand, there is no act of respondent No. 1 which could lead the petitioner to commit the mistake. No person can be allowed to take the advantage of his own wrong. It is presumed that every person knew the relevent rules about the eligibility when he/she took the examination. It was a calculated risk. Once the mistake was detected, the candidature of the petitioner was rightly cancelled.

In that event, the plea put forward was that had the petitioner been told earlier, she would have taken the examination under the Open School Scheme as the syllabus under both the schemes is the same. This Court had permitted respondent No. 1 to file additional affidavit. Additional affidavit had been filed. It indicates that though passing of 10+1 examination from a recognised institution is not necessary under the Open School Scheme but the papers are different. There is a paper of Moral Education under the regular scheme which is not available in the case of Open School Scheme. Even the syllabus under these two schemes is different. Further difference has been pointed out by respondent No. 1 in its additional reply as under :--

"That under the regular scheme a candidate can have compartment in one subject only and has to pass the other four subjects and this compartment in one subject can be cleared in maximum two attempts whereas under the Open School Scheme a candidate may pass in one subject or two subjects and he is eligible to pass the remaining subjects in the next chance, there is no such provision of compartment etc. under the open scheme. This is a special benefit given to the candidates under the Open School Scheme i.e. a candidate can avail any number of chances upto 5 years in order to pass the papers, whereas no such facility is available to the students under the regular scheme. It is further submitted that in case a student fails in more than one subject under the regular scheme, he is declared fail and is bound to appear in all the subjects in the next chance whereas there is no such condition under the Open School Scheme."

In this view of the matter, it is abundantly clear that to state that any person can take the examination under the Open School Scheme cannot be correct in term that the petitioner was made to commit that mistake when it was not pointed out to her on an earlier occasion.

As an offshoot of these reasons, it must follow that the writ petition being without merit must fail. The petitioner was not eligible to take 10+2 examination and her candidature was rightly cancelled. Consequently, the writ petition is dismissed.