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2020 DIGILAW 288 (CAL)

Rana Roy v. State Of West Bengal

2020-02-26

SHEKHAR B.SARAF

body2020
JUDGMENT 1. Due to urgency in this writ petition, I had requested Mr. Baid, learned Counsel for the Council for the Indian School Certificate Examination and Mr. Debjit Mukherjee along with Mr. Anujit Mookherji, learned Counsel for the school authorities to appear on behalf of the respondents inspite of resolution that has been taken by the Bar Association today. This was done as the issue involved in this writ petition is a sensitive issue and is dealing with the career of a student. 2. This is an application under Article 226 of the Constitution of India wherein the writ petitioner is aggrieved by the action of the school authorities and the Council for the Indian School Certificate Examination for disallowing his son Mr. Rajit Roy from taking the I.C.S.E. examination. 3. The factual matrix of the case is that the petitioner is claiming that his son has been regular in attendance and for reasons best known to the school authorities, the school is taking a stern view against his son. The petitioner has relied on the complaint made by him on earlier occasions. 4. It is the submission of the petitioner that payment for the examination has been made by him for taking the I.C.S.E. examination, and therefore, his son should be allowed to take part in the said examination. 5. Mr. Debjit Mukherjee, learned Counsel on behalf of the school authorities has produced the report cards for Classes IX and X and also the attendance register maintained by the school authorities for the year 2019-2020. 6. Upon a microscopic examination of the same, it is clear that the school authorities have correctly marked the petitioners sons attendance. The claim of the petitioner does not hold any water whatsoever. 7. Mr. Baid, learned Counsel on behalf of the Council has provided the rules and regulations wherein a minimum requirement of 75% attendance is required. The Rule further provides for some condonation where the attendance is below 75%. In cases where the attendance is below 60%, certain exceptions have been made. The relevant Rule is delineated below :- 'E. Minimum Attendance Requirement Candidates whose attendance is below 75% of the working days are ordinarily not eligible to sit for the examination. The Rule further provides for some condonation where the attendance is below 75%. In cases where the attendance is below 60%, certain exceptions have been made. The relevant Rule is delineated below :- 'E. Minimum Attendance Requirement Candidates whose attendance is below 75% of the working days are ordinarily not eligible to sit for the examination. However, the Chief Executive and Secretary has the authority to condone the shortage of attendance in the case of candidates whose minimum attendance is not less than 60% of the working days in each year of the two-year course. This is inclusive of absence due to illness and other special circumstances. Heads of Schools may represent, to the Chief Executive and Secretary, cases of candidates who deserve special consideration for condoning shortage of attendance in Class IX and/or X, provided that the attendance of such candidates is not less than 60% of the working days, during each year of the two-year course. Further, the Chief Executive and Secretary may condone the shortage of attendance in the case of candidates whose minimum attendance is below 60% in exceptional cases i.e.: (i) on Phychological/Medical Grounds such as serious illness requiring a long period of treatment /hospitalisation. (ii) Authorised participation in sports at State or National Level organised by recognised Sports Authorities. (iii) Other unforeseen and special circumstances. The Chief Executive and Secretary would subsequently report the matter to the Executive Committee of the Council. The last date for computing attendance at school is February 15, of each of the two years.' 8. Mr. Baid, submits that in the present circumstances the students attendance is 49% in Class IX and 30% in Class X. Under these circumstances, he submits that the student cannot be allowed to take part in the examination. Mr. Baid relies on a judgement passed by this Court in the case of Rahul Tewari Vs. Union of India, reported in (2019) 1 WBLR (CAL) 54 wherein several Supreme Court judgements were discussed by this Court. The principle that emerged from the above judgement was that a sympathetic view cannot be taken dehors the rules and regulations and sympathy should not be used as a tool to sidestep and dodge the rules established by the academic institution. The relevant extract of the judgement is provided below : '3. Mr. The principle that emerged from the above judgement was that a sympathetic view cannot be taken dehors the rules and regulations and sympathy should not be used as a tool to sidestep and dodge the rules established by the academic institution. The relevant extract of the judgement is provided below : '3. Mr. Baid, counsel appearing on behalf of the Board, relies on the judgments of the Supreme Court in Council For Indian School Certificate Examination -v- Isha Mittal and Another reported in (2000) 7 SCC 521 [Coram: S.P. Bharucha, Ruma Pal and Shivaraj V. Patil, JJ.], Regional Officer, CBSE -V- Ku. Sheena Peethambaran and Others reported in (2003) 7 SCC 719 [Coram: Brijesh Kumar and Arun Kumar, JJ.], Mahatma Gandhi University and Another -v- GIS Jose and Others reported in (2008) 17 SCC 611 [Coram: Ashok Bhan and V.S. Sirpurkar, JJ.] and the Orissa High Court judgment in Saurav Maharana -v- Council for the Indian School Certificate Examinations and Ors. reported in 2007(II) OLR 595 [Coram: P.K. Tripathy and R.N. Biswal, JJ.] to buttress his submissions that the ISC Rules are sacrosanct and there is no scope whatsoever for the courts to interfere. He submits that the Supreme Court has time and again reiterated that mercy and sympathy cannot overrule the ISC Rules established by the Board as the same are promulgated to maintain academic standards. He further submitted that allowing even one child to appear in the examination dehors the ISC Rules would open the floodgates resulting in collapse of the entire system governed by the Board. 4. I have heard counsel appearing on behalf of both the parties and perused the materials on record. 5. At this juncture, I embark on an examination of the judgments cited by counsel appearing on behalf of the Board. In Isha Mittal (supra) the three Judges Bench of the Supreme Court clearly stated that if the law was in favour of the Board/Council, the High Court was obliged to issue an order in its favour and considerations of equity would not permit the High Court to pass an order contrary to law. 6. In Isha Mittal (supra) the three Judges Bench of the Supreme Court clearly stated that if the law was in favour of the Board/Council, the High Court was obliged to issue an order in its favour and considerations of equity would not permit the High Court to pass an order contrary to law. 6. In Sheena Peethambaran (supra), the Supreme Court after examining several judgments of the Supreme Court held that condoning the lapse or overlooking the legal requirements in consideration of mere sympathy does not solve any problem, rather breeds more violations and disturbs the discipline of the system and ultimately, adversely affects the academic standards. 7. In GIS Jose and Others (supra) the Supreme Court relying on Sheena Peethambaran (supra) stated that misplaced sympathies cannot be shown in total breach of the rules. The relevant portion of the judgment is delineated below: 10. The misplaced sympathies should not have been shown in total breach of the rules. In our opinion, that is precisely what has happened. Such a course was disapproved by this Court CBSE v. Sheena Peethambaran. In para 6 of the judgment, this Court observed as follows: 6. This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases, it is ultimately pleaded that since the course was over or the result had been declared, the matter deserves to be considered sympathetically. It results in very awkward difficult situations. Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions.' 11. In the present case, the college where the student was admitted, in breach of all possible rules allowed her not only to complete the course but also to write the examination which was totally illegal. 8. Apart from the above judgments cited by the petitioner, I find the ratio in Guru Nanak Dev University -v- Parminder Kr. Bansal reported in (1993) 4 SCC 401 [Coram: M.N. Venkatachaliah, C.J. and Dr. T.K. Thommen and S. Mohan, JJ.] to be relevant and accordingly the same is reproduced below: 7. We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone. Bansal reported in (1993) 4 SCC 401 [Coram: M.N. Venkatachaliah, C.J. and Dr. T.K. Thommen and S. Mohan, JJ.] to be relevant and accordingly the same is reproduced below: 7. We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose, ill- conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later when serious complications might ensue from the interim ord e r itself. In the present case, the High Court was apparently moved by sympathy for the candidates than by an accurate assessment of even the prima facie legal position. Such orders cannot be allowed to stand. The Courts should not embarrass academic authorities by themselves taking over their functions. 9. Furthermore, the Supreme Court in A.P. Christians Medical Educational Society -v- Government of A.P. reported in (1986) 2 SCC 667 had also categorically stated that institutions cannot be asked to disobey the regulations made by the institutions itself for its smooth functioning. The relevant portion at paragraph 10 is delineated below: 10. .We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws .. 10. The relevant portion at paragraph 10 is delineated below: 10. .We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws .. 10. The facts of the present case are akin to the judgment in Saurav Maharana (supra) delivered by the Orissa High Court wherein the Division Bench of the High Court relying on the Supreme Court judgment in the case of Guru Nanak Dev University (supra) refused to direct the ISC Board to publish the results of a student who had failed to secure pass marks in four subjects including English in Class XI but had been promoted by the school from class XI to XII and had been allowed to take the examination on the strength of an interim order passed by the High Court. 11. The principles that emerge from the above precedents are as follows: (a) Rules framed by various examination boards are for the purpose of maintaining academic standards and the same cannot be bent on the whims and fancies of the court. (b) Bending or bypassing the rules would result in disturbance of the academic system adversely affecting the academic standards. (c) Principles of equity should not be applied to circumvent the rules and regulations framed by academic institutions for the smooth running of the institutions and for maintenance of the high standards of learning. (d) A sympathetic approach cannot be a substitute to adherence of the rules and regulations and should not be used as a tool to sidestep and dodge the rules established by the academic institutions. 9. Upon examination of the above judgement and the factual matrix of the present case, I do not see any reason to interfere in the decision of the Council for the Indian School Certification Examination and the school authorities to not allow the petitioners son from taking the I.C.S.E. examination this year. It may be added here that the marksheets of the student for the Classes IX and X examination also show that the student is very weak in academics and has not performed very well. 10. In my view, allowing the student to take part in the examination would be unfair to the student himself. It may be added here that the marksheets of the student for the Classes IX and X examination also show that the student is very weak in academics and has not performed very well. 10. In my view, allowing the student to take part in the examination would be unfair to the student himself. The corrective measures taken at this stage shall not only improve the academic quality of the student but shall add to his future career prospects. 11. I need to point out that this writ petition has been filed on 18t h February, 2020, nine days before the I.C.E.S. examinations are to start. Today, the matter has been taken up upon mentioning by the petitioner as the examination is to begin from tomorrow. As indicated above, Counsel for the school authorities and Council were requested to be present with documents so that the Court could assess the situation on an urgent basis. As pointed out above, upon examination of the document produced, I do not see any reason to pass a writ of mandamus in favour of the petitioner. Copy of the documents submitted by the respondents be kept with the records. 12. With the above reasons, this writ petition stands dismissed. 13. The view taken by this Court hereinabove shall however, not preclude the school authorities and the Council for the Indian School Certification Examination from taking a sympathetic view in the event the petitioner is able to provide medical certificates explaining the low attendance of the petitioners son. The petitioner shall be at liberty to provide the medical certificates to the school that will forward the same to the Council at the earliest. In the event of the petitioner providing the medical certificates, the respondents may consider allowing the child to take the first examination that is to be held tomorrow. I make it clear that no special equity shall arise in favour of the petitioners son for having taken the first examination and the petitioner shall abide by the final view taken by the Council. 14. Since no affidavit-in-opposition is called for, allegations made in the writ petition are deemed not to have been admitted. 15. Photostat plain copy of this order, duly counter-signed by the Assistant Registrar (Court) be handed over to the parties on usual undertaking.