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2007 DIGILAW 99 (CAL)

SNEHASIS MAHAPATRA v. STATE OF WEST BENGAL

2007-02-16

JAYANTA KUMAR BISWAS

body2007
( 1 ) THE petitioners are aggrieved by the decision of the executive committee of the West Bengal Board of Secondary Education dated October 17, 2006 rejecting the first petitioner's application for enrolling him, so that he may take the secondary examination of the board as a regular candidate. In view of urgency, by consent of Counsel for the parties, the writ petition itself has been taken up for final disposal, though today the matter has appeared for hearing of the application for early disposal of the writ petition. The urgency is that the secondary examination that the first petitioner wants to take is scheduled to start on February 20, 2007. ( 2 ) THE first petitioner was born on December 26, 1992. He was admitted to class-IX by the authority of Bonhugly High School, Kolkata - 700 035 in the academic session 2005-06. He passed the annual examination and was promoted to class-X. In the test examination conducted by the institute for sending its regular students for registration by the board for taking its secondary examination he fared extremely well having ranked third among the students who took the test. The institute, having found him eligible in every respect, sent his application to the board for enrolling him as a regular candidate. His application was turned down on the ground that he was born after the cut off date October 31, 1992. His case was placed before the executive committee, which even after noticing that his father is a physically handicapped person and mother a mental patient, turned down the application. ( 3 ) COUNSEL for the resoondents submits that the first petitioner was not eligible to be registered as a regular candidate in view of provisions in the west Bengal Board of Secondary Education (Examination) Regulations, 2001, regn. 9, which is : "9. Age limit - The Board may enrol a candidate who - (a) has completed the age of 13 (thirteen) years, or (b) shall complete the age of 13 (thirteen) years, within ninety days, from the commencement date of the academic session of class IX in a particular year. " His contention is that since the first petitioner did not complete the minimum age for enrolment as a regular candidate, the executive committee of the board did not commit any wrong by turning down the request. " His contention is that since the first petitioner did not complete the minimum age for enrolment as a regular candidate, the executive committee of the board did not commit any wrong by turning down the request. He finds little to say about permission given to one mousumi Chakraborty (referred to in paras. 13 and 14 of the writ petition) to take secondary examination of the board at the age of nine. ( 4 ) IT is not the case of the respondents that Mousumi Chakraborty was permitted to take the secondary examination at the age of nine illegally or by mistake. In paras. 3 and 4 of their opposition (paras. 13 and 14 of the writ petition were dealt with in them) they simply remained silent about Mousumi's case. It is therefore to be presumed that permission was given to her to take examination at the age of nine, because there was no prohibition against permitting one to take secondary examination of the board as a regular enrolled candidate under the age of thirteen. There has been no change in the regulations. I therefore do not see any valid reason why the executive committee of the board turned down the request of the first petitioner who is not only a brilliant student, but has also been struggling at his tender age having a physically handicapped father and a mentally ill mother. In my view, the executive committee did not give a proper approach to the request. ( 5 ) EVEN otherwise, I find that the circulars speaking of the minimum age for admission to class IX for pursuing a course for taking the secondary examination of the board did not put an absolute prohibition on admitting an under-thirteen. They rather said that generally the minimum age for admission to class IX would be thirteen within ninety days from the date of commencement of the academic year; that is to say, the minimum age would generally be twelve years nine months. In the absence of a specific prohibition, I am unable to accept the case of the respondents that being an under-thirteen the first petitioner was not eligible to be admitted to class IX. ( 6 ) PROVISIONS in regn. 9 gave a discretionary power to the board to enrol a candidate for permitting him to take its secondary examination. In the absence of a specific prohibition, I am unable to accept the case of the respondents that being an under-thirteen the first petitioner was not eligible to be admitted to class IX. ( 6 ) PROVISIONS in regn. 9 gave a discretionary power to the board to enrol a candidate for permitting him to take its secondary examination. No doubt they say that the board may enrol a candidate who has completed the age of thirteen, but they do not put any prohibition on enrolling a candidate not reaching the age of thirteen at the cut off date. Here the first petitioner was short of it by one month and twenty-six days only. In my view, by visualizing such a prohibition in the provisions in regn. 9, the executive committee, in fact, relied on some provision of law that was not in the piece of legislation (a delegated one ). ( 7 ) PROVISIONS in regn. 17 speak of the conditions one must fulfill in order to be eligible to sit as a regular candidate for the secondary examination of the board. There is no doubt that the first petitioner satisfies all the conditions except the condition in cl. (b), which says, "he must be eligible to be admitted in class IX according to the West Bengal Board of Secondary Education". In my reading of this provision, the question whether the first petitioner was eligible, was to be determined by the executive committee by exercising its widest possible discretion conferred on it by provisions in regn. 17 (b ). They did not refer to any other rules or regulations or circulars. But the discretion was not exercised at all. ( 8 ) FOR these reasons, I allow the writ petition and set aside the impugned decision of the executive committee dated October 17, 2006; and order that the authorities of the board shall enrol the first petitioner so that he may take its secondary examination scheduled to start on February 20, 2007. Necessary steps for issuing admit card shall be taken at once. It is made clear that even if no admit card is issued, the authorities of the centre concerned shall permit the first petitioner to take the examination in view of this order. There shall be no order for costs in the case. Necessary steps for issuing admit card shall be taken at once. It is made clear that even if no admit card is issued, the authorities of the centre concerned shall permit the first petitioner to take the examination in view of this order. There shall be no order for costs in the case. In view of this order nothing remains to be decided in the application, which shall be deemed to be disposed of.