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2010 DIGILAW 1490 (CAL)

Goutam Lahiri v. UNION OF INDIA

2010-12-24

DIPANKAR DATTA

body2010
Judgment : 1. The petitioner’s son is a student of WWA Cossipore English School (hereafter the school). The school is affiliated to the Council for the Indian School Certificate Examinations (hereafter the Council). 2. This petition dated May 3, 2010 has been presented by the petitioner feeling aggrieved by the action of the school in not promoting his son to class X from class IX. According to the petitioner, his son had succeeded in obtaining marks more than that stipulated by the Council for regulating promotions of students from class IX to class X and, therefore, have acted without jurisdiction. 3. Mr. S.K. Mukherjee, learned advocate representing the petitioner has taken pains to demonstrate before the Court that the petitioner’s son was entitled to be promoted to class X in terms of the regulations framed by the Council. He, accordingly, prayed for an order on the school to promote the son of the petitioner to class X and further order on the Council to allow him appear at the School Final Examination scheduled next year waiving the minimum attendance criterion. 4. Mr. Baid, learned advocate for the Council, has supported the stand of the petitioner that his son has been declared unsuccessful in deviation of the pass criteria fixed by the Council. Insofar as permission to appear at the School Final Examination scheduled next year without the requisite percentage of attendance is concerned, he submitted that condonation below 60% cannot be made under any circumstances, but if the Court on consideration of the facts and circumstances of this case passes an order, the Council would be bound to act in terms thereof. 5. Mr. Bhattacharya, learned advocate for the school opposed the writ petition by contending that the minimum marks stipulated by the Council i.e. 35% in all subjects was never communicated and, therefore, the school had fixed 40% minimum score in all subjects as the pass marks. The petitioner’s son failed to secure 40% marks and, therefore, was rightly detained in class IX. 6. It was also submitted by him that after securing promotion to class IX from class VIII, all the students have been provided with the school diary. It has been mentioned therein for information of all concerned that 40% marks would be the pass marks. 6. It was also submitted by him that after securing promotion to class IX from class VIII, all the students have been provided with the school diary. It has been mentioned therein for information of all concerned that 40% marks would be the pass marks. The parents of the students were well and truly aware right from the beginning of the session that 40% is the pass marks and, therefore, after the student was detained, the petitioner cannot turn around and claim that 35% should be pass marks. 7. It has also been brought to my notice that several other schools of Kolkata, which are affiliated to the Council, have fixed 40% as the pass marks. 8. He, accordingly, prayed for dismissal of the writ petition. 9. In reply to the submission of Mr. Bhattacharya, Mr. Baid pointed out to a particular regulation in the regulations which reads thus : “Internal Examination The examination at the end of Class IX will be conducted by the school and the promotion of candidates from Class IX to Class X will be the responsibility of the Head of the School in accordance with the attendance and pass criteria as laid down by the Council for the Indian School Certificate Examinations.” 10. According to him, the school ought to have enquired from the Council regarding the criteria fixed by it for the purpose of regulating promotions of students from class IX to class X. However, on a specific query being raised by the Court as to whether the Council at any point of time tried to ascertain as to whether the schools affiliated to it are abiding by its regulation for promotion from class IX to class X or not, the answer came in the negative. 11. I have heard learned advocates for the parties and considered the plight of the student with the care and sympathy the same deserves. I regret, I am not inclined to exercise writ powers in favour of the student and to direct the school to promote him to class X and thereafter allow him to take the School Final examination scheduled early next year. 12. True it is that the Council has fixed 35% as the pass marks. However, no evidence could be placed by Mr. Baid to the effect that the school was informed of the same. 12. True it is that the Council has fixed 35% as the pass marks. However, no evidence could be placed by Mr. Baid to the effect that the school was informed of the same. It is equally true that the school should have enquired from the Council regarding the pass criteria prescribed by it so that it could abide by it. But mere omission or failure in this respect would not clothe the petitioner with any judicially enforceable right to claim his son’s promotion to class X. So far as the petitioner and his spouse are concerned they were aware from the beginning of the academic session that 40% marks has to be secured by their son in all the subjects to gain promotion. If indeed they were aware that 35% is the pass marks fixed by the Council, there is no explanation as to why they did not point it out to the school at the beginning of the session. 13. It has to be remembered that the Council is not a statutory body; it is a registered society. Its regulations do not have statutory force. Non-compliance with non-statutory regulations framed by the Council by the school would not by itself form a ground for interference. The school has not fixed a pass criteria that is lower to the one fixed by the Council; on the contrary, it is more than that fixed by it. In such circumstances, fixation of 40% minimum score does not appear to be so unreasonable that the Writ Court’s interdiction would be warranted. 14. Moreover, I cannot lose sight of the fact that the petitioner has not attended a single class in class X. Even if he is allowed to study in class X now by directing his promotion, he would be deprived of the required training that is imparted by the teachers in the school. Mr. Mukherjee, on instructions, submitted that the petitioner’s son has taken private tuitions and is ready to take the School Final examination. I am not at all impressed by such submission. If based on private tuition a student would be fully equipped to appear at the School Final Examination, there is no apparent need to send him to school. I have no hesitation to hold that the petitioner’s son would appear in the examination untaught or half-taught; that would lead him to nowhere. If based on private tuition a student would be fully equipped to appear at the School Final Examination, there is no apparent need to send him to school. I have no hesitation to hold that the petitioner’s son would appear in the examination untaught or half-taught; that would lead him to nowhere. Even if he barely succeeds in the School Final Examination, such result would impede his future prospects. In the best interest of the student, it would be proper for him to re-take the final examination in class IX. 15. The writ petition, accordingly, stands disposed of without granting relief as claimed herein. However, the school is directed to allow the petitioner’s son to take the Annual Examination for promotion from class IX to class X, whenever it is so conducted, waiving the attendance criterion. Needless to observe, if the petitioner’s son succeeds to clear such examination he shall be promoted to class X for pursuing further study. 16. It shall be open to the Council to issue necessary direction to the school to abide by the pass criteria fixed by it for regulating promotion of students from class IX to class X, if it so thinks fit. 17. There shall be no order as to costs.