ORDER 13.3.2003 — Heard Mr. J.M. Mohanty, learned counsel for the petitioner and Mr. A. Mohanty, learned counsel for the opp.parties. 2. The minor daughter of the petitioner - Rini Abraham is studying in Kendriya Vidyalaya, INS, Chilka. She has been denied promotion from Class-VIII to Class-IX on the ground that she has secured only 6.8 out of 40 marks in Mathematics paper in the Annual Examination. The petitioner has filed this writ petition under Article 226 of the Constitution for directing the opp.parties to declare the petitioner’s minor daughter to have passed in the Annual Examination of the year 2001-2002 and to declare her as promoted from Class-VIII to Class-IX. 3. A copy of the mark-sheet issued by the principal, Kendriya Vidyalaya, INS, Chilka to the daughter of the petitioner for Class-VIII has been annexed as Annexure-1 to the writ peti¬tion. The marks that the petitioner’s daughter has been given for practical and project, assignment, unit tests, cumulative exami¬nation (mid session examination) and session ending examination are indicated herein below : Total :10 Total :10 Total : 20 Total : 20 Total : 100 12 8.5 8.2 5.2 40.7 In the aforesaid mark-sheet, it is indicated that the aggre¬gate that the petitioner’s daughter has secured is 388/600 and the percentage of marks that she (petitioner’s daughter) has secured is 65 per cent. 3. Mr. J.M. Mohanty, learned counsel for the petitioner referred to the provisions of Rules 114 and 117 of the Education Code for Kendriya Vidyalayas. He submitted that the assessment of marks is to be made as per the said provision of Rule 114. The said provision would show that for session ending examination/Annual examination only 40 marks are allowed whereas 20 marks each are allotted to practical and project, unit tests and mid session examination. He argued that the total marks of the petitioner’s daughter in the practical and project, unit tests, mid session examination and the session ending examination work out to 40.7 in Mathematics. Thus, the petitioner’s daughter has secured more than 30 % marks in Mathematics in which she has failed but has maintained an aggregate of 60 % which is more than 35 %. Rule 117 provides that a student can be granted promotion if he/she has secured at least 30 % marks in the subject which he/she has failed but has maintained in the aggregate of 35 %. Rule 117 provides that a student can be granted promotion if he/she has secured at least 30 % marks in the subject which he/she has failed but has maintained in the aggregate of 35 %. The petitioner’s daughter, therefore, should have been promoted from Class-VIII to Class-IX. 4. Mr Ashok Mohanty, learned counsel for the opp.parties, on the other hand, referred to the provisions of Rule 116-A (b) and Rule 116-B (ii) of the Education Code for Kendriya Vidyalayas and submitted that the said rules clearly provide that a student must secure 13 marks out of 40 in the Annual Examination and not les than 35 % marks in Mathematics to be eligible for promotion. According to Mr Ashok Mohanty, Rule 117 has to be interpreted consistent with the said rule in Rule 116-A (b) and 116-B (ii) and so inter¬preted a student has to secure 30 % marks in the Annual Examina¬tion itself to be promoted even under Rule 117 of the Education Code for Kendriya Vidyalayas. 5. The provisions of Rules 114; 116-A(b), 116-B(ii) and 117 are quoted herein below: “114. Promotion: The final assessment will be based on a maximum of 100 marks in each subject distributed as under: (a) Class Work, home work, projects : 20 (b) Periodical/unit tests : 20 (c) Mid-session examination : 20 (d) Session-ending examination : 40 _______________ Total : 100 NOTE: This rule will apply only for classes V to XI and exclude the examinations conducted by the CBSE. 2. Subjects involving practical work in Classes VI to IX and record books shall be allotted 1/3 of the total marks for the subject. 116-A(b) : For Classes VI to IX and XI : Each student would need to pass the continuous and compre¬hensive evaluation as well as the annual examination separately with at least 1/3 marks. Thus each child should obtain not less than 20 marks out of 60 in each subject in the continuous and comprehensive assessment for class VI onwards and 13 marks out of 40 in annual examinations for being promoted to the next class. 116-B(ii) : In classes VI to VIII to pass the examination a student must obtain not less than 35 % marks in each of the academic subjects viz. Languages, Mathematics, Sciences and Social Studies. 117. 116-B(ii) : In classes VI to VIII to pass the examination a student must obtain not less than 35 % marks in each of the academic subjects viz. Languages, Mathematics, Sciences and Social Studies. 117. In classes VI to VIII a student failing in one or two subjects may be granted promotion provided he has secured at least 30 % marks in each of the subjects he has failed but main¬tained the aggregate of 35 %”. Mr Mohanty is right in his submission that the provisions of the aforesaid Rules 114, 116-A(b), 116-B(ii) and 117 have to be construed harmoniously. A reading of Rule 114 which relates to promotion would show that final assessment will have to be based on a maximum of 100 marks in each subject distributed in the manner indicated in the said Rule 114. The said provision ex¬pressly allots only 40 marks to the session ending examination/Annual examination and 20 marks each in practical, unit tests and mid session examination. If that be so, then the 30 % marks referred to in Rule 117 of the Education Code for Kendriya Vidyalayas cannot mean 30 out of 100 marks in the ses¬sion ending examination but can only mean 30 out of 100 marks (20+20+20+40) in the Annual Examination). Thus, the contention of Mr Mohanty that 30% marks in Rule 117 of the Education Code for Kendriya Vidyalayas in the subject in which a student has failed would mean 30 % in the Annual Examination if accepted would negate the provisions of Rule 114 of the Education Code for Kendriya Vidyalayas. 6. If Rules 117 and 114 are construed harmoniously a student who secures 30 marks in the subject in which he has failed out of 100 marks as distributed in Rule 114 would be entitled for consideration for promotion to the next higher class under Rule 117 of the Education Code for Kendriya Vidyalayas. 7. Rule 117 of the Education Code for Kendriya Vidyalayas so interpreted may apparently conflict with Rule 116-A(b) and Rule 116-B(ii) quoted above. Rule 116-A (b) states that each student would need to pass the continuous and comprehensive evaluation as well as the annual examination separately with at least 1/33rd marks. 7. Rule 117 of the Education Code for Kendriya Vidyalayas so interpreted may apparently conflict with Rule 116-A(b) and Rule 116-B(ii) quoted above. Rule 116-A (b) states that each student would need to pass the continuous and comprehensive evaluation as well as the annual examination separately with at least 1/33rd marks. The said provision further requires that each child should obtain not less than 20 marks out of 60 in each subject in the continuous and comprehensive assessment for Class VI onwards and 13 marks out of 40 in annual examinations, for being promoted to the next class. Rule 116-B(ii) further requires that in Classes VI to VIII to pass the examination a student must obtain not less than 35% marks in each of the academic subjects referred to above including Mathematics. Basing on these provisions in Rules 116-A(b) and 116-B(ii), the authorities of the Kendriya Vidyalayas appear to have taken a view that the petitioner's daughter not having secured 13 out of 40 marks in the Annual Examination and 35% in Mathematics could not be promoted to Class IX. But in our view, the provisions in Rules 116-A(b) and 116-B(ii) if fulfilled by a student, the authorities cannot detain a student in the lower class but have to promote the student mandatorily. In other words, once the provision of Rules 116-A(b) and 116-B(ii) are fulfilled by a student, the student has a right to be promoted to the higher class. Correspondingly, if the student does not fulfil the requirements of Rules 116-A(b) and 116-B(ii), he cannot, as a matter of right, ask for promotion to the higher class. But even where a student does not fulfil the requirements of Rules 116-A(b) and 116-B(ii), he can still be considered for promotion by the authorities in their discretion if he satisfies the requirements of Rule 117. Such discretion of the authorities, however, has to be exercised fairly and reasonably and not in an arbitrary and unreasonable manner. 8. In the present case, as we have discussed above, the minor daughter of the petitioner namely, Rini Abraham has secured 40.7 marks out of 100 marks distributed in the manner provided in Rule 114 in Mathematics paper in which she has failed in the Annual Examination. She (daughter of the petitioner) has maintained an aggregate of 65% as indicated in the mark-sheet issued by the principal of Kendriya Vidyalaya, INS, Chilka. She (daughter of the petitioner) has maintained an aggregate of 65% as indicated in the mark-sheet issued by the principal of Kendriya Vidyalaya, INS, Chilka. Considering the fact that she had secured an aggregate as high as 65% with more than 65% in four subjects and more 70% in one subject and has secured 40.7% in Mathematics paper in which she has failed in the Annual Examination, a fair and reasonable exercise of discretion for promoting her to the higher class ought to have been exercised by the authorities under Rule 117. 9. For the aforesaid reasons, we allow this writ petition and direct that the petitioner's daughter, namely, Rini Abraham will stand promoted to Class-IX. We are told that the Annual Examination of Class-IX will commence tomorrow. The petitioner's daughter, namely, Rini Abraham will be allowed to take the Annual Examination of Class IX. This order has been passed in presence of Mr. Ashok Mohanty, learned counsel for the opp. parties who will communicate the same to the concerned authorities. The operative part of the order will be faxed by the Registry to the appropriate authority of INS, Chilka. Petition allowed.