JUDGMENT : Durga Prasanna Choudhury, J - Challenge has been made to the inappropriate and illegal action of the opp. Parties by not allowing them admission to the B.S.-M.S. courses applied by the petitioners. Since both the writ petitions have common question of law, they are being disposed of by this common order. FACTS & SUBMISSIONS: 2. Learned counsels in both the writ petitions submitted that both the writ petitioners in respective writ petitions have secured 95% marks in five subjects including one language subject with four elective subjects in the Senior School Certificate Examination, 2015 (hereinafter called SSC Examination) conducted by the Central Board of Secondary Education (hereinafter called CBSE). Both the petitioners have taken Physical Education as an additional subject. They applied for prosecuting B.S.-M.S. dual Degree programme, 2015 in the Indian Institutes of Science Education and Research (hereinafter called USER). Since both the petitioners have secured cut-off marks 95% in Senior School Certificate Examination, 2015 (hereinafter called SSE), they were allowed to appear in the competitive examination. Both the petitioners were selected for prosecuting B.S.-M.S. dual course in USER at Mohali and Kolkata respectively. But on 27.7.2015 the petitioner in W.P.(C) No. 13912 of 2015 got a telephonic message that her admission to USER at Mohali has been cancelled due to lack of 95% marks in the SSC Examination. Similarly in W.P.(C) No. 14096 of 2015 the petitioner went to Kolkata and submitted documents but he was refused admission on the ground that he has not secured 95% marks in SSC Examination. 3. It is the contention of the learned counsels for the petitioners coupled with the writ petitions that both the petitioners have kept Physical Education as additional subject and is required subjects i.e. one language with four elective subjects or two languages with three elective subjects, five subjects altogether are required as pass criteria fixed under CBSE Regulation. The petitioners having secured 95% marks in five subjects, should not be denied admission in the USER courses. It is further submitted by learned counsels for the petitioners that the opp. Parties 2 and 3 have erred in law by calculating marks obtained by the petitioners in Physical Education while calculating total marks, inasmuch, as the additional subject is not required to be considered eligibility of petitioners to get admission. They further submitted that the refusal of admission of the petitioners by the opp. Parties 2 and 3 have erred in law by calculating marks obtained by the petitioners in Physical Education while calculating total marks, inasmuch, as the additional subject is not required to be considered eligibility of petitioners to get admission. They further submitted that the refusal of admission of the petitioners by the opp. Parties is absolutely illegal, improper and liable to be quashed by allowing the writ petitions and the petitioners should be allowed to be admitted in the courses applied for. 4. Learned counsel for the opp. Parties relying upon the counter affidavit filed by opp. Party No. 2 submits that the writ petitions are not maintainable and the actions taken by the opp. Parties is legal and proper. He submitted that as per the information bulletin issued by the USER under Annexure-1 for admission to five years dual course, the instructions have been clearly given that marks obtained by the petitioners "in all subjects" mentioned in the mark sheet would be taken into consideration while considering cut-off mark. He further stated that the institute is competent to establish and decide its own criteria independent of the CBSE. He further referred to a judgment of the High Court of Kerala passed in W.P.(C) No. 18327 of 2012, where the learned Single Judge has accepted the procedure adopted by the opp. Parties. It is further submitted by the learned counsel for the opp. Parties that at the time of verification it was found that both the petitioners have taken six subjects in the CBSE Class XII, then as per the USER principle they were found to have secured below 95%, although the cut off mark was 95%, resulting refusal of admission to these petitioners. He further submitted that since the subject Physical Education is neither optional nor additional subject, it was not possible for the opp. parties to ignore that subject while calculating the marks of the petitioners. It is also submitted by the learned counsel for the opp. Parties that since USER is conducting examination for the candidates who have qualifying examinations under different Education Boards it is not possible to adopt the procedure of selection depicted by the petitioners in their writ petitions. On the whole, it is submitted by learned counsel for the opp. Parties that the decision taken by the opp. Parties is correct and rightly the petitioners have been denied admission in USER courses. 5. On the whole, it is submitted by learned counsel for the opp. Parties that the decision taken by the opp. Parties is correct and rightly the petitioners have been denied admission in USER courses. 5. Learned counsel for the opp. Party No. 3 submitted in support of the affidavit filed by the opp. party No. 3 that under the scheme for examination and pass criteria for a student is that, one has to opt for five subjects in total i.e. one language subject (Hindi/English) is compulsory and four other elective subjects or he can opt for three elective subjects and two language subjects. He further stated that the additional subject can be taken out of elective subjects or from the language offered, but at any cost there should not be more than two languages. He further stated that the pass criteria in the examination for a candidate is to obtain 33% of marks in each of all the five subjects (one language and four elective subjects or two language with three elective subjects). POINT FOR DISCUSSION: 6. The only point for de termination in this case is as to whether one language and four elective subjects of the petitioners are qualifying subjects under CBSE to be considered for their admission in USER course. DISCUSSIONS 7. It is not disputed that the petitioners have applied for BS-MS dual course of USER. It is also not disputed that they have passed the SSC Examination conducted by the CBSE. Petitioner in W.P.(C) No. 13912 of 2015 has secured the marks as follows:- Petitioner in W.P.(C) No. 14096 of 2015 has secured the marks as follows:- 8. In order to find out what was the additional subject taken by the petitioners, we called upon the petitioners to obtain from the school authorities, as to the subject opted as additional subject by the petitioners. The petitioners filed the certificate given by the Principal, Kendriya Vidyalaya, Bhubaneswar that both the petitioners have taken Physical Education as their "additional subject". It is true that petitioner in W.P.(C) No. 13912 of 2015 has secured 72% marks in Physical Education, whereas the petitioner in W.P.(C) No. 14096 of 2015 has secured 91% marks in Physical Education. 9. In view of the clear scheme of the examination of the CBSE no doubt the five subjects can only be taken as qualifying subjects to pass Class-XII examination in CBSE. 9. In view of the clear scheme of the examination of the CBSE no doubt the five subjects can only be taken as qualifying subjects to pass Class-XII examination in CBSE. It is also reported in Kusum Lata Vs. State of Haryana and Others, AIR 2002 SC 2790 : (2002) 5 JT 568 : (2002) 5 SCALE 403 : (2002) 6 SCC 343 : (2002) 1 SCR 359 Supp : (2002) 3 SCT 915 : (2002) AIRSCW 3159 : (2002) 5 Supreme 202 and others, where Their Lordships have observed at paragraph-8 as follows:- "8. As per the scheme of examination of CBSE the marks obtained in the additional subjects are not taken into consideration in the passing of the examination. The additional subject is optional. A candidate may take it or not. The requirement is that a candidate should obtain 33% marks or Grade D-2 in each of the five subjects of external examination as per the scheme of the studies. When the eligibility clause stipulates that a candidate should have passed 10+2 examination with at least 50% aggregate marks, it is implicit that the aggregate marks are required to be calculated keeping in view only the subjects which are necessary to pass 10+2 examination and not the marks of the additional subject which is not taken into account for passing the examination. This is the only reasonable interpretation having regard to the spirit of the clause providing for eligibility conditions. The relevant factor is to see what is necessary to pass 10+2 examination conducted by CBSE and on that basis decide whether a candidate fulfils or not the requirement of the eligibility clause. If seen from this perspective, the aggregate marks would have to be worked out having regard to the marks obtained in five subjects and not in the additional subject which is not taken into account for passing the examination." With due respect to the decisions we have no doubt that in the SSC Examination (10+2 Examination) conducted by the CBSE the aggregate marks would have to be worked out having regard to the marks obtained in five subjects and not in additional subject for passing the examination. So in the case in hand having gone through all the above documents we conclude that both the petitioners have passed in five subjects (one language and four elective) by acquiring 95% marks and their additional subject is Physical Education. 10. It is strenuously contended on behalf of opposite party No. 2 (USER) that in view of the notification issued by the USER that "all subjects" taken by the candidates have to be taken into consideration. In this respect, the examinations taken by the petitioners are to be guided by the CBSE Regulations. The manner in which an additional subject "shall be treated is found from regulation 2.5(d)(ii)", which reads as under:- "(d) In respect of a candidate offering an additional subject, the following norms shall be applied; (ii) An elective subject offered as an additional subject may replace one of the elective subjects offered by the candidate. It may also replace a language provided after replacement the candidate has English/Hindi as one of the languages." In view of the aforesaid regulation, it is clear therefrom that when a candidate takes an "additional subject", if the mark secured by the candidate in the additional subject (which is an elective paper) is higher than the marks obtained by the said candidate in other elective papers, the candidate, would get the benefit of the said higher mark in the additional subject by being "replaced". In other words, the objective behind this regulation is to encourage students to take additional subjects and such additional subject would be of essence and would assist such a candidate in securing better average marks. This rule cannot be interpreted in a manner detrimental to the interest of such candidates. We are afraid we cannot accept the argument advanced by opposite party No. 2 to the contrary, since candidates taking additional subjects cannot be penalized for having taken "additional subjects". Consequently, we are of the considered view that the object behind CBSE in allowing a candidate to take an "additional subject" can only be interpreted in a beneficial manner to such a candidate and not to the candidates determent. 11. It is submitted by the learned counsel for the opp. Parties that the information bulletin as supported by both the parties reveal in the following manner:- "2. Applicants seeking admission under State and Central Boards (SCB) stream must meet the criteria of minimum percentage cut-off marks for eligibility. 11. It is submitted by the learned counsel for the opp. Parties that the information bulletin as supported by both the parties reveal in the following manner:- "2. Applicants seeking admission under State and Central Boards (SCB) stream must meet the criteria of minimum percentage cut-off marks for eligibility. If their percentage in Class 12 Board is less than the percentage cut-off marks specified in the MINIMUM MARKS TABLE, then their application will not be accepted. Please consider all subjects for which numerical numbers have been awarded to calculate the percentage." 12. Learned counsel for opposite party No. 2-IISER in his counter affidavit filed certain sample mark sheets of candidates who have been considered for admission to USER and in such mark sheets those candidates have appeared in a total of five subjects, in other words, those candidates have not taken any additional subject. In the case at hand, the petitioners, who appeared in the selfsame CBSE examination have taken an "additional subject". It is submitted on behalf of opposite party No. 2 that physical education is also an elective subject and on this score there can be no dispute. But, it is most important to note herein that the USER while considering the candidates, who have appeared in "five subjects" have taken the marks of those five subjects but, for the petitioners the opposite party No. 2 appears to be insisting upon taking into consideration the total marks of "six subjects" (including the additional subject)". This argument itself is fallacious, since a candidate who has taken an additional extra subject is in effect being penalized, since all six subjects have been taken into consideration. This by itself is clearly discriminatory vis-a-vis those who opted only for five papers, Therefore, we are of the considered view that the stand of opposite party No. 2 to the aforesaid extent (as noted hereinabove) is to be rejected out-right on the ground of discrimination. 13. No doubt the above circular shows that they are considering the Class-XII Board Examination marks and the word "all subjects" is no longer res integra in view of the decision of the Hon'ble Apex Court in the decision reported in (2002) 6 SCC 363 (supra), where Their Lordships have observed in paragraph-11 as follows:- "11. 13. No doubt the above circular shows that they are considering the Class-XII Board Examination marks and the word "all subjects" is no longer res integra in view of the decision of the Hon'ble Apex Court in the decision reported in (2002) 6 SCC 363 (supra), where Their Lordships have observed in paragraph-11 as follows:- "11. The only difference in the marksheet issued by CBSE is that it does not show total after five subjects and in fact no total is shown. The relevant consideration is not the manner of issue of the marksheet or the different pro forma which may be adopted by one board or the other but to go into the real object behind the clause. As already stated, the object of the clause prescribing the eligibility condition is that the qualifying examination shall be passed by a candidate with at least 50% marks. A candidate on securing requisite marks would pass without taking the sixth subject. There would have been no difficulty if the pro forma of CBSE was similar to the one adopted by Haryana. In that eventuality, it would not have been possible to decline admission to the appellant on the ground for her not satisfying the minimum prescribed percentage under the eligibility condition. This kind of approach would be arbitrary and discriminatory. Thus, the interpretation placed by the High Court is hypertechnical and erroneous. We are unable to sustain the said interpretation. The appellant satisfies the eligibility stipulation and the respondents committed serious illegality in declining her admission to D.Ed. Course." 14. With due respect to the decision we are of the considered view that the opp. Parties must go to real object behind the clause to consider the marks of all subjects to find out the cut-off marks in Class-XII Board Examination. Similar to the facts of the present case, the facts are also dealt in Kusum Lata case (supra). Since the decision of Hon'ble Kerala High Court in Ejaz Ashraf Vs. Union of India and others (supra) relied on by opposite party No. 2 has not placed reliance on Kusum Lata case (supra) of Hon'ble Apex Court, decision of Hon'ble Kerala High Court is not binding. CBSE being the major organization conducting examination whose pass out are considered for higher education should be considered by the USER prominently. Union of India and others (supra) relied on by opposite party No. 2 has not placed reliance on Kusum Lata case (supra) of Hon'ble Apex Court, decision of Hon'ble Kerala High Court is not binding. CBSE being the major organization conducting examination whose pass out are considered for higher education should be considered by the USER prominently. The subjects required for securing cut-off marks as appears in Annexure-1 of the counter filed by opp. Party No. 2 means the five subjects chronologically maintained in the mark sheet of the respective petitioners and in those subjects they have secured 95% marks and the additional subject is Physical Education should not be taken in consideration to calculate the cut-off marks because it is the sixth and "additional subject" not meant for pass criteria and in the circumstances of this case "replacement" as contemplated under Rule 2.5(d)(ii) of Annexure-A/3 does not come in to play. The word "all subjects" appearing in Annexure-1 of USER means subjects required to pass CBSE Examination or any other equivalent Examinations. We therefore, observe that the criteria for admission to USER, 2015 do not contain sixth subject, but it only contain the five subjects as required as pass criteria under CBSE Examination for the petitioners to get their admission. Point is answered accordingly. CONCLUSION 15. Since we are of view that both the petitioners have secured 95% marks in one language and four elective subjects to clear SSC Examination under CBSE and they have qualified in the tests as per the Annexures, they have right to be admitted in the USER courses applied for. So refusal of admission of petitioners to USER courses by opp. parties 1 and 2 is illegal and improper. We therefore, direct the opp. Parties 1 and 2 to admit the petitioners in BS-MS dual course at their respective choice places within a period of two weeks. Interim orders stand vacated. The writ petitions are allowed accordingly. Final Result : Allowed