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Rajasthan High Court · body

2005 DIGILAW 2920 (RAJ)

CBSE, Ajmer v. Sourabh Lodha

2005-11-09

S.N.JHA, SHASHI KANT SHARMA

body2005
Judgment S.N. Jha, CJ.-The dispute in this batch of 23 appeals relates to eligibility of the respondents for admission to class-X and declaration of their result of class-X examination. The representative facts may be noticed from Writ Petition No. 4931/2005 giving rise to Special Appeal No. 849/2005. 2. The respondent was a regular student of class-IX in Maheshwari Public School. He appeared at the internal examination conducted by the school in terms of bye-law 37(ii) of the Examination Bye-Laws framed by the Central Board of Secondary Education (in short the Board). There is dispute as to whether he passed the examination. According to the respondent, the criteria of passing the class-IX examination in different schools are not uniform. Be that as it may, the respondent took transfer from the Maheshwari Public School and got himself admitted in the Indo Bharat International School. He thereafter completed the regular Session and became eligible to appear at the class-X examination conducted by the Board in terms of bye-law 10.2 of the Bye-Laws. His examination form and fees forwarded by the authorities of the Indo Bharat International School were duly accepted by the Board and he was allowed to appear in the examination with Roll No. 1112497. He appeared at the examination which was held between 03.03.2005 and 24.03.2005 from the M.G.D. Girls Secondary School Centre. However, while the result of other students was published, his result was arbitrarily withheld. Neither any reason was assigned nor any explanation was called for from him. In the circumstances, the respondent approached this Court seeking direction for declaration of his result. 3. In reply, the appellants stated that the respondent had failed in class-IX examination in Maheshwari Public School and therefore, he was not eligible to take admission in class-X. The Indo Bharat International School however, illegally and in collusion with the respondent and many other similarly situated students admitted them to class-X. The school also misled the appellant-Board by declaring the respondent as a regular student of the school eligible to appear at the examination. Not being eligible to take admission in class-X, he could not appear at the final class-X examination and, therefore, cannot seek direction to publish his result. 4. Not being eligible to take admission in class-X, he could not appear at the final class-X examination and, therefore, cannot seek direction to publish his result. 4. The learned Single Judge on consideration of the case of the parties took the view that if the Board was really sincere about its action, it should have checked the credentials of the school and the students before admissions were granted or at least before accepting the examination fees and forms and issuing admit cards to the respondents. The action appeared to have been taken only after the respondents appeared at the examination. The learned Single Judge noticed that before accepting the fees and forms and issuing the admit card to the respondents, the Board had entered into correspondence with the school in this regard. The learned Single Judge observed that any demeaning, deceitful or illegal act of a person or an institution cannot be condoned but the fall out of the belated action and its consequences have to be weighed taking into account the totality of circumstances in order to avoid miscarriage of justice. The learned Single Judge noticed that the criteria of passing class-IX examination in different schools involved in the instant dispute, was not the same. In this regard the learned Judge referred to S.V. Public School which had granted admission to some of the respondents in class-X on the basis of pass percentage of 33% in class-IX examination as per the CBSE Regulation. The learned Single Judge found on perusal of the result-sheet of class-X examination which was produced in sealed cover and opened in Court that the respondents had cleared class-X examination except a few who had been permitted to take compartmental examination in the subject/papers in which they had failed at the annual examination. Thus, taking an equitable view of the matter by the order impugned, dated 05.08.2005, the learned Single Judge directed the appellant Board to formally declare the result of the respondents observing that if any/some of them had not cleared all the subjects/papers, they obviously would have to re-appear in compartmental examination in the concerned subject/papers. Feeling aggrieved, the Board has come in appeal to the Division Bench. 5. Feeling aggrieved, the Board has come in appeal to the Division Bench. 5. Shri R.P. Singh, learned Counsel for the appellants submitted that the respondents having failed in class-IX examination, in terms of the Examination Bye-Laws they were not eligible to take admission in class-X. Having been denied admission in the former school they took admission in another school namely, Indo Bharat International School in violation of the Bye-Laws. Not being eligible to take admission in class-X, they were not eligible to appear at the final class-X examination conducted by the Board and the Board, therefore, rightly withheld their results. Counsel submitted that functioning of the Board is governed by the Examination Bye-Laws and it is not supposed to violate them. In support of the submissions Counsel placed reliance on Regional Officer, CBSE vs. Ku. Sheena Peethambaran & Ors., 2003(7) SCC 719 . He also referred to A.P. Christians Medical Educational Society vs. Govt. of A.P., 1986(2) SCC 667 . 6. The Bye-Laws which are the foundation of the case of the appellant Board are Bye-Laws 6.1 and 7.3 of the Examination Bye-Laws, the relevant parts of which may be noticed as under: -“6.1 A student seeking admission to any class in a School will be eligible for admission to that class only if he: .(i) has been studying in a School recognized by or affiliated to this Board or any other recognized Board of Secondary Education in India; .(ii) has passed qualifying or equivalent examination making him eligible for admission to that Class (iii) --------------- .(iv) produces : .(a) --------------- (b) document (s) in support of his having passed the qualifying or equivalent qualifying examination; and .(c) ---------------” “7.3 Admission to Class X:-As the syllabus prescribed at Secondary level is of two years integrated course, no admission shall be taken in Class X directly. Provided further that admission to Class X in a school shall be open only to such a student who: .(a) has completed a regular course of study for class IX, and .(b) has passed class IX examination from an institution affiliated to this Board. .(c) -----------------” 7. Provided further that admission to Class X in a school shall be open only to such a student who: .(a) has completed a regular course of study for class IX, and .(b) has passed class IX examination from an institution affiliated to this Board. .(c) -----------------” 7. On a bare reading it would appear that the bye-laws prohibit admission to any class in a school unless he has passed the qualifying or equivalent qualifying examination and produces document in support of his having passed such examination; and in the case of admission to class X he has passed class IX examination. The point for consideration is whether assuming that the respondents were not eligible for admission to class-X as they did not pass class-IX examination; their result of class-X examination can be withheld? It is not in dispute that the examination fees and forms submitted by the respondents were accepted by the appellant Board and they were allowed to appear at class-X examination conducted by it. In Regional Officer, CBSE vs. Ku. Sheena Peethambaran & Ors. (Supra), the petitioner had filled-up the form for class-X examination but the same was withheld by the school authorities on the ground that she had not cleared her class-IX examination. She approached the High Court and by an interim order, the respondents were directed to allow her to join class-X subject to decision in the case. By another interim order, she was permitted to appear in the examination. After the examination form etc. were sent to the Board, the writ petition was disposed of having become infructuous. Another writ petition was filed, as the Board was not permitting the petitioner to appear in the examination. Again by an interim order the Board was directed to permit her to appear in the examination, the result whereof would be subject to decision in the case. Later by yet another interim order result of the examination was directed to be declared observing that the petitioner possessed the minimum educational qualification having passed the middle class-VIII examination. The High Court finally disposed of the writ petition holding that since the petitioner had already appeared in the examination and her result had been declared provisionally, the Board should finally declare her result and issue a fresh marks-sheet without any endorsement thereon. The validity of the aforesaid orders was questioned in the Supreme Court. The High Court finally disposed of the writ petition holding that since the petitioner had already appeared in the examination and her result had been declared provisionally, the Board should finally declare her result and issue a fresh marks-sheet without any endorsement thereon. The validity of the aforesaid orders was questioned in the Supreme Court. The Court deprecated the practice of permitting the students to pursue their studies and appear in the examination under interim orders and in the circumstances set-aside the impugned orders of the High Court. The Court relying on A.P. Christians Medical Educational Society vs. Govt. of A.P. (Supra), observed that by a judicial fiat the examination body cannot be directed to disobey the statute to which it owes its existence. Nothing can be more destructive of the rule of law than a direction of the Court to disobey the laws. 8. The distinguishing feature of the case of Ku. Sheena Peethambaran & Ors. (Supra), it would appear, is that the petitioner was not allowed to prosecute the studies in class-X and attend the classes on the ground that she was not eligible for admission to class-X but by an interim order she was permitted to attend the classes subject to decision in the case and after the examination forms and fees were sent by the authorities to the Board, the petition itself was disposed of having become infructuous with the observation that she would be permitted to take part in the examination and no further direction was required. Again, when the Board refused to admit her to the examination, by an interim order she was permitted to appear in the examination. In the instant case, the objection of the Board came rather too late after the respondents had already appeared at the school examination and were awaiting the results. 9. In Shri Krishnan vs. The Kurukshetra University, Kurukshetra, 1976 (1) SCC 311 , the petitioner - a Government servant and also a part-time student in Law College- failed in three subjects at the Part-I final examination but was promoted to Part-II with option to clear those subjects. He was initially refused permission to appear at the Part-II examination but permission was ultimately granted on his giving undertaking that he would secure his employers permission. After the examination he requested the University to declare his result. He was initially refused permission to appear at the Part-II examination but permission was ultimately granted on his giving undertaking that he would secure his employers permission. After the examination he requested the University to declare his result. At that stage he was informed that since his percentage in Part-I was short his candidature stool cancelled. The writ petition in the High Court having been dismissed, he approached the Supreme Court. The Supreme Court observed that the University Ordinance empowers the authorities to withdraw the certificate regarding attendance before the examination if the candidate fails to achieve the prescribed minimum. But this could be done only before the examination. Having been allowed to appear in the examination, rightly or wrongly, he cannot be refused admission subsequently for any infirmity which should have been looked into before giving the appellant permission to appear. It will be useful to quote the relevant observations as under: -“The last part of this statute clearly shows that the University could withdraw the certificate if the applicant had failed to attend the prescribed course of lectures. But this could be done only before the examination. It is, therefore, manifest that once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the university to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear.” 10. In Sanatan Gauda vs. Berhampur University & Ors., 1990 (3) SCC 23 , on which the reliance was placed on behalf of the respondent, some what similar question arose. The appellant was admitted to the three years Law Degree course, allowed to appear in the examination and finally admitted to the final year course but at the stage of declaration of his result of Pre-Law and Inter-Law examinations, the University raised objection to his eligibility for admission to the Law course. The Supreme Court held that the University was estopped from refusing to declare the result of the appellants examination or from preventing him from pursuing his final year course. The Supreme Court held that the University was estopped from refusing to declare the result of the appellants examination or from preventing him from pursuing his final year course. The Court observed that the University cannot punish the student for negligence of the Principal or University authorities; it was bounden duty of the University to scrutinize the matter thoroughly before permitting the appellant to appear at the examination and not having done so it cannot refuse to publish his results. The relevant observations from the Judgment may be quoted as under: - “This is apart from the fact that I find that in the present case, the appellant while securing his admission in the Law College had admittedly submitted his marks-sheet along with the application for admission. The Law College had admitted him. He had pursued his studies for two years. The University had also granted him the admission card for the Pre-Law and Intermediate Law examinations. He was permitted to appear in the said examinations. He was also admitted to the final year of the course. It is only at the stage of the declaration of his results of the Pre-Law and Inter-Law examinations that the University raised the objection to his so-called ineligibility to be admitted to the Law Course. The University is, therefore, clearly estopped from refusing to declare the results of the appellants examination or from preventing him from pursuing his final year course.” 11. The objection of the appellant-Board in the instant case relates to eligibility of the respondents for admission to class-X, but no such objection was raised before admitting them to class-X examination unlike the case of Ku. Sheena Peethambaran & Ors. (Supra). In that case, as seen above, initially the school authorities did not permit the petitioner to join the classes and prosecute the studies but by an interim order they were directed to permit the petitioner to do so and when the Board refused to admit her to the examination, again, the High Court intervened and by an interim order permitted her to take part in the examination. That ratio of the decision is, therefore, clearly not applicable in the instant case. The decisions in Shri Krishnan vs. The Kurukshetra university, Kurukshetra (Supra) and Sanatan Gauda vs. Berhampur University & Ors. (Supra) rather are closer to the facts of the present case. That ratio of the decision is, therefore, clearly not applicable in the instant case. The decisions in Shri Krishnan vs. The Kurukshetra university, Kurukshetra (Supra) and Sanatan Gauda vs. Berhampur University & Ors. (Supra) rather are closer to the facts of the present case. In the former case a three Judge Bench clearly ruled that once the candidate is allowed to take examination, rightly or wrongly; his candidature cannot be questioned on the ground that he did not attend the requisite number of classes and was, therefore, ineligible to appear at the examination. Once he is allowed to take the examination, the statute which permits the University/Board to withdraw the candidature would be deemed to have worked itself out and cannot be subsequently invoked to find fault with it. To the same effect is the ratio of decision in Sanatan Gauda vs. Berhampur University & Ors. (Supra). 12. Coming to the instant case, it was open to the appellant-Board to refuse admission to the respondents to appear in the class-X examination on the ground that their admission to class-X was illegal as they had not cleared class-IX examination, but having allowed them to appear at class-X examination, they cannot fall back on bye-laws 6.1 or 7.3 and on that ground withhold their results. The bye-laws contain an injection against admission to the higher class; having been admitted to class-X and allowed to complete the course and, finally, allowed by the Board to appear at the final examination, the bye-laws must be held to have exhausted itself and cannot be a ground to deny them result of the examination. The admission in terms of bye-laws 6.1 or 7.3 being a distinct matter, the direction of the learned Single Judge to declare the result of the respondents cannot be said to be violative of the Bye-Law. We are satisfied in the facts and circumstances that equity was in favour of the respondents and, therefore, direction of the learned Single Judge does not require any interference by the Division Bench. 13. In the result, we find no merit in the appeals, which are accordingly dismissed.