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2021 DIGILAW 634 (GUJ)

Nikunj S/o Lalitkumar Ganatra v. State of Gujarat

2021-07-28

N.V.ANJARIA

body2021
JUDGMENT : N.V. ANJARIA, J. 1. The petitioner who is the student in the 12th standard general stream, has invoked the jurisdiction of this Court under Article 226 of the Constitution by filing this petition through his father and natural guardian. 1.1 The grievance of the petitioner is in respect of the criteria and formula envisaged by respondent No. 2-Gujarat Secondary and Higher Secondary Education Board for preparing the result of the students studying in 12th standard for the Academic Year 2020-21, as reflected in the communication-cum-circular dated 19th June, 2021. The 12th standard examinations was not conducted in the wake of waive of COVID-19 pandemic, the decision was taken to cancel the already declared examinations. Therefore the manner and criteria of calculating the marks to pass out the students in the 12th standard for the purpose of declaring their result sans examinations were formulated. 2. What the petitioner has prayed is to direct respondent No. 2-Gujarat Secondary and Higher Secondary Education Board (hereinafter referred to as ‘the GSHSE Board’) to modify the Notification/Circular dated 19th June, 2021 to the extent that for the purpose of calculation of marks of the main subjects for standard 12 commerce, that is, subjects of Elements of Accounting and Statistics, the marks of subject Mathematics obtained by the students in the 10th standard only should be taken into consideration. The second prayer is on the same lines seeking modification of the said Notification to the extent that for calculation of marks of the main subjects for 12th standard commerce like Organisation of Commerce and Secretarial Practice, marks of subject Mathematics obtained by the students should be taken into consideration along with other subjects of 10th standard. 2.1 The petitioner has made alternative prayer to direct respondent No. 2-GSHSE Board to follow the rules and the manner prescribed by the Central Board of Secondary Education, that is “average theory components of best three performing subjects out of six main subjects of 10th standard” praying further that such formula should be applied and marks should accordingly be taken into consideration for preparation of final mark-sheet for any stream of 12th standard. 3. 3. The petitioner has put forth his case stating that as the 12th standard examination was not held in view of the spread of pandemic, respondent-State and GSHSE Board came out with aforementioned Notification dated 19th June, 2021 prescribing therein the Rules, formula and the manner for calculation of marks of the students in the different streams of 12th standard. As could be gathered from the said impugned Notification, the formula laid down for preparation of final mark-sheet of the students was thus: (a) Maximum 50 Marks will be considered from standard 10 (Considering the formula @ rate of 71.43% of 70 Marks in particular subject); (b) Maximum 25 Marks will be considered from standard 11 (Considering the formula as 50% of Average of marks obtained in First Term (50 marks) and Second Term (50 Marks)); (c) Maximum 25 Marks will be considered from standard 12 (Considering the formula of 20% of marks obtained during Academic Year 2020-21 of First Term (100 Marks) and during the said year and exam conducted subject wise (25 marks) thus total 20% of 125 marks). 3.1 It is the further case of the petitioner that in view of the above formula, the respondent-Board further divided subjects of 10th standard, 11th standard and 12th standard in different groups. Group 1, 2 and 3 were devised for science stream and Group 1, 2, 3 and 4 came to be determined for other stream. The marks were classified based on such groups as to which subject of 10th standard would be taken into consideration for giving marks in the corresponding subject of 12th standard and to prepare mark-sheet for 12th standard on such footing. 3.2 The subjects of 10th standard to be treated as main corresponding to the main subjects in the 12th standard in the science stream for assessment was demonstrated. For the main subject Mathematics in standard 12 (science), the corresponding main subject mentioned in the formula was Mathematics. Similarly, for the Chemistry and Physics subjects of the 12th standard, corresponding 10th standard subject was “average of science and mathematics” for Biology it was subject of science in the 10th standard. For the main subject Mathematics in standard 12 (science), the corresponding main subject mentioned in the formula was Mathematics. Similarly, for the Chemistry and Physics subjects of the 12th standard, corresponding 10th standard subject was “average of science and mathematics” for Biology it was subject of science in the 10th standard. For other stream which the petitioner described as commerce stream, it was demonstrated that in relation to the main subjects of Organisation of Commerce and Elements of Accounting, 10th standard corresponding subject provided is “average of social science and third language.” 3.3 In the same way, for the subjects of Statistics and Secretarial Practice of the 12th standard, the corresponding subject of 10th standard which would be taken into account for preparing result is referred to be “average of social science, science and first language.” It is the case of the petitioner therefore that for none of the subjects of 12th standard for preparing final mark-sheet, subject of Mathematics in 10th standard was considered and was omitted. It is the premise of grievance of the petitioner that such exclusion lacks application of mind. 3.4 Without incorporating any prayer for setting aside, the petitioner proceeded in his pleadings to call in question another Notification dated 20th June, 2021 issued by respondent No. 2 whereby it is provided that those students who are dissatisfied with the procedure and formula of calculating marks as per the Circular dated 19th June, 2021, shall have the option to surrender their mark-sheet within 15 days from the date of declaration of final marks and they will have the further option to give another examination and that the marks of the latter examination will be taken into consideration. It was contended that the said Notification dated 20th June, 2021 was cleverly issued, even though no student would opt for reexamination. It was submitted that in issuing the same, there was no practical application of mind. It was further sought to be contended that it was issued as a shield to thwart the challenge to Notification dated 19th June, 2021. In whatever way the petitioner has perceived the said subsequent Notification and whatever may be the reason not to challenge the same in the prayers, the said is an ancillary aspect at the best. It is mentioned as it is pleaded by the petitioner. In whatever way the petitioner has perceived the said subsequent Notification and whatever may be the reason not to challenge the same in the prayers, the said is an ancillary aspect at the best. It is mentioned as it is pleaded by the petitioner. 3.5 Pursuant to Court’s order dated 15th July, 2021, respondent No. 2 Board filed its affidavit-in-reply dated 16th July, 2021. Therein inter-alia it has been contended that the formula considered for preparation of final mark-sheet for the students of the 12th standard was a policy decision for assessment of marks taken by the committee of experts. It was submitted that the Court may not extend itself in the realm of policy. The considerations weighed with the decision makers were highlighted in the affidavit, which are stated with elaboration in the succeeding paragraph. In the affidavit-in-reply, the pattern of study and the subjects taught in the science stream and general stream of the 10th standard were explained to justify the manner adopted for preparation of final mark-sheet of 12th standard. It was pointed out that there was no separate commerce stream as described by the petitioner. 4. Learned advocate for the petitioner Mr. Raj Tanna relied on the grounds set forth in the petition and further vigorously submitted that in the science stream, the subjects of Mathematics and Science of 10th standard are considered main subjects for deriving final marks of the 12th standard, however the same pattern is not followed in what was described by learned advocate for the petitioner, as commerce stream. He submitted that looking to the nature of subjects in that stream, it was only appropriate that the marks in Mathematics of the 10th standard is accounted for, for preparing result of the 12th standard. It was submitted that the classification done by excluding the Mathematics of the 10th standard was illogical and arbitrary. It was submitted that those students who are good in the subject of Mathematics, but weak in Science in 10th standard would prefer to join the commerce group of subjects in the 12th standard, therefore, the 10th standard marks in the subject of Mathematics ought to have been given weightage for preparing final result. It was submitted that those students who are good in the subject of Mathematics, but weak in Science in 10th standard would prefer to join the commerce group of subjects in the 12th standard, therefore, the 10th standard marks in the subject of Mathematics ought to have been given weightage for preparing final result. 4.1 Learned advocate for the petitioner further submitted that Central Board of Secondary Education has devised a proper manner of calculation of marks, and the said formula is thus: (a) 30% of marks from standard 10 (Average theory component and best three performing subjects out of five main subjects), (b) 30% of marks from standard 11 (Marks based on theory component of final exam) and (c) 40% of marks from standard 12 (Marks based on Unit Test/Mid-Term/Pre-Board Examination). It was further submitted that on the same logic of the formula adopted by CBSE, other States such as States of Madhya Pradesh, Tamil Nadu, Goa have framed the criteria. The submission was thus sought to be buttressed that the impugned Notification and the mechanism to prepare result decided therein is devoid of rationale. 4.2 Learned advocate Mr. A.D. Oza appearing for respondent No. 2 extensively relied on affidavit-in-reply to pinpoint at the outset that it was a misconception on part of the petitioner to canvass that there is a commerce stream in 12th standard and the Board offers to the students such stream called Commerce. It was submitted that the assessment criteria was determined on the basis of science stream and general stream, which are offered by the Board to the students at the 12th standard. He submitted that the petitioner-student appears to have got more marks in Mathematics in the 10th standard, therefore he wants to count the Mathematics subject and the marks thereof for his result of 12th standard. It was therefore submitted that petitioner is subjective in questioning the policy of assessment of marks. It was submitted that result of the 12th standard general stream students is going to declare in the month of July, 2021 and that the deadline is set by the Supreme Court for declaring the results. It was submitted that the present petition is an eleventh hour attempt to put on halt and delay the declaration of result of almost 4,01,143 students by harbouring grievance on misconceived notions. It was submitted that the present petition is an eleventh hour attempt to put on halt and delay the declaration of result of almost 4,01,143 students by harbouring grievance on misconceived notions. It was further submitted that the Court may not interpose itself in the decision taken by the academic experts. 4.3 Learned Assistant Government Pleader Mr. Manraj Barot supported the submissions made on behalf of respondent No. 2. 4.4 Responding to the submission on behalf of respondent No. 2 that Court would not interfere in the policy matters, it was submitted in rejoinder by learned advocate for the petitioner that where the framing of policy is irrational and arbitrary, the Court would strike it down. By referring to the decision of the Supreme Court in Re Distribution of Essential Supplies and Services during pandemic being suo motu Writ Petition (Civil) No. 3 of 2021 to submit that the Court has powers to going to the reasonableness of the policy. He next relied on decision of this Court in Bhikhubhai Vitthalbhai Patel vs. State of Gujarat, 2006 (1) GLR 558 , submitting therefrom that a policy decision would not be immune from judicial review when completely lacking in justification. By pressing into service another decision in Harishbhai N. Patel vs. National Horticulture Board, Sardar Patel Municipal Market, 2013 (2) GLH 175 , it was argued that as held therein, even while framing and implementing the policy the authorities are bound by constitutional provisions. It was harped that the action impugned in this petition of formulation of the criteria for assessment of marks for preparing the result is arbitrary and in violation of Article 14 of the Constitution. He next relied on decision of the Division Bench of this Court in The Danta Majur Kamdar Sahakari Mandli Limited vs. The Deputy Commissioner of Forests being Special Civil Application No. 3937 of 2020 and allied petition, for similar proposition. 5. The outbreak of novel virus COVID-19 and the resultant situation forced the respondents to cancel the Board examinations for academic year 2020-21 also for the students of 12th standard. It was decided to evolve a formula for preparation of final result of the 12th standard students to pass them out without taking examination, for which it was decided to assess the final result by deriving weitage of marks obtained by the students in the 10th standard. It was decided to evolve a formula for preparation of final result of the 12th standard students to pass them out without taking examination, for which it was decided to assess the final result by deriving weitage of marks obtained by the students in the 10th standard. The petitioner who happens to be a student in the general stream of the 12th standard, stood aggrieved for the reason, stated in nutshell, that the formula of preparing the result did not provide to take into account the marks of the subject of Mathematics obtained in the 10th standard. It is exclusion of the marks of the Mathematics in doing assessment for final result of 12th standard general stream, which is the crux of the grievance and the controversy. 5.1 Answering the case of the petitioner, the stand of the respondent No. 2 reflected in affidavit-in-reply has the following material aspects touching the merits of the decision: (i) The State Government took in-principal decision to cancel the Board examination in view of the pandemic situation. Students of 10th standard and 12th standard were to be allowed to march ahead to the next higher standard without examination. The passing mechanism and the criteria for preparing final result without examination, were therefore needed to be evolved. (ii) By Resolution dated 04th June, 2021, the State Government appointed committee of 11 members who are the experts in the field of education, for the purpose of determining the assessment scheme for the 12th standard science stream and general stream. Separate assessment policy was framed for the science stream and general stream. (iii) At the higher secondary level in the 12th standard, the discipline offered to the students are science stream, general stream, vocational stream and post-basic stream. In the present case, the petitioner has put forth comparison of manner of assessment of marks in respect of the students of science stream and that of the general stream, to which the petitioner belongs. It is misnomer that there is a separate commerce stream, which was the premise erected by the petitioner to put up his case. In the present case, the petitioner has put forth comparison of manner of assessment of marks in respect of the students of science stream and that of the general stream, to which the petitioner belongs. It is misnomer that there is a separate commerce stream, which was the premise erected by the petitioner to put up his case. (iv) The expert committee constituted as above had in it four invitee members: (1) the Vice Chancellor of Gujarat Technological University, (2) two Members of Admission Committee for Professional Courses, (3) Member of Diploma Engineering Admission Committee and (4) others in the committee were the experts including the high officials of the Education Department. The committee deliberated on the formulation of assessment of marks and the mechanism was devised to issue the consequential Circular/Notification dated 19th June, 2021. (v) In science stream, Group A consist of three subjects namely Physics, Chemistry and Mathematics, Group B has the subjects of Physics, Chemistry and Biology and the third AB Group consists of Physics, Chemistry, Mathematics and Biology. (vi) In general stream, there are 30 subjects categorised in four different groups, out of which subject of English in Group I is compulsory for every student. Group II here contains eight language subjects, out of which one is to be chosen by the students. In Group III, there are nine subjects out of which two are to be selected. Similarly, in Group IV, three subjects to be selected out of eleven. It follows that out of twenty eight subjects, six subjects are to be selected by the students. (vii) At Annexure-R2 (Pages 88-89) of the affidavit-in-reply this details are reflected in the tabular form. All the 30 subjects are mentioned in the Annexure-R3 (Page 90). 5.2 It is noticeable that in the total 30 subjects listed for the general stream, there is no subject of Mathematics. Not only that, there is no sub-classification in general stream such as commerce or arts. In this context, the submission of the respondent that it is fallacious to suggest that subjects of Organisation of Commerce, Elements of Accounting, Statistics and Secretarial Practice, and Commercial Correspondence are main subjects of commerce stream, could not be brushed aside. Not only that, there is no sub-classification in general stream such as commerce or arts. In this context, the submission of the respondent that it is fallacious to suggest that subjects of Organisation of Commerce, Elements of Accounting, Statistics and Secretarial Practice, and Commercial Correspondence are main subjects of commerce stream, could not be brushed aside. The selection of subjects of 10th standard to be taken into account correspondingly with the main subjects of 12th standard for processing the assessment and arriving at the final marks, has thus the context of different subjects spread over to 30 in numbers for the general stream. The subject of Mathematics did not figure there, however since the same was in science stream, the Mathematics in the 10th standard was taken as corresponding subject for assessment of marks, as far as the science stream students were concerned. What is considered and provided in the method of assessment has a logic and rationale. 5.3 When total assessment scheme is gathered, as determined by the expert committee, 50% marks of standard 10 would be considered. The performance of the students in the 10th standards with reference to the subjects selected, would be reflected in the preparation of results of the 12th standard. The non-taking of Mathematics subject in 10th standard has a rational nexus to the factum of the subjects offered in the general stream in the 12th standard. The subject of Mathematics figured important in the science stream, therefore the marks thereof in the 10th standard were considered relevant, but in the general stream, the Mathematics being not the subject, other subjects of 10th standard are selected for securing assessment in the 12th standard general stream. 5.4 The grievance of the petitioner is about consideration of Social Science subject for general stream students to the exclusion of Mathematics. It appears that the expert committee has taken into account the subject pattern of general stream of the 12th standard to treat the 10th standard subject of Social Science to be relevant for allocating marks in 12th standard. It was given out that the syllabus of Social Science subject of the 10th standard, the mark of which would be counted in the result of 12th standard, included the majority subject of general stream of the 12th standard. 5.5 Arbitrariness is not an abstract idea. In the same way, reasonableness is also a contextual concept. It was given out that the syllabus of Social Science subject of the 10th standard, the mark of which would be counted in the result of 12th standard, included the majority subject of general stream of the 12th standard. 5.5 Arbitrariness is not an abstract idea. In the same way, reasonableness is also a contextual concept. Whether an action or decision is arbitrary or whether it is reasonable depends on the context of the attendant facts and the realities attached to the action or decision. In the facts of the present case, the obliteration of importance on the subject of Mathematics at 10th standard in the preparation of final result of 12th standard general stream appears to be guided by the kind, variety and pattern of subjects available and offered to the 12th standard general stream students. The formula of assessment of marks, when based on a consideration which is relevant, does not become arbitrary, merely because it may operate harsh in a given case, that is to say in the cases of students who have secured more marks in the subject of Mathematics than the marks obtained in the subject of Social Science in 10th standard. Also that the different formula is adopted by the Central Board and by the Boards of the other State which are more reasonable, is of no relevance and consequence, and does lead the case of the petitioner anywhere. 5.6 At this stage, the decisions relied on by learned advocate for the petitioner may be dealt with. In Re Distribution of Essential Supplies and Services during pandemic (supra), the Apex Court examined therein the aspects of vaccination policy adopted by the governmental authorities. The decision in The Danta Majur Kamdar Sahakari Mandli Limited (supra) had subject matter of challenge to the tender contract and the work order given thereunder. The case in Harishbhai N. Patel (supra) was altogether different. Therein, in relation to a scheme of National Horticultural Development, the recommendation in favour of the petitioner for subsidy was found to have been rejected by the committee without any germane reason and the petitioner was found within eligibility criteria. It was in that context that the decision was held by the Court to be unwarranted and unsustainable. Therein, in relation to a scheme of National Horticultural Development, the recommendation in favour of the petitioner for subsidy was found to have been rejected by the committee without any germane reason and the petitioner was found within eligibility criteria. It was in that context that the decision was held by the Court to be unwarranted and unsustainable. The decision in Bhikhubhai Vitthalbhai Patel (supra) was under the Gujarat Town Planning and Urban Development Act, in which the decision of the Municipality to place the lands in educational zone was the issue and the decision was found to have been arrived at without collecting any material to justify the proper zoning. The Court said that the decision was “tainted with complete lack of consideration of any material.” Such is indeed not the case herein. None of the decisions relied on by learned advocate for the petitioner hold good for petitioner’s case. 6. The impugned Circular and the decision reflected therein setting out the formula and mechanism to assess the marks for 12th standard general stream students and the criteria adopted therefor, are indeed a policy decision. It is not only a policy decision, but the interior thereof is the educational field and academic subject. In the decision making process leading to the impugned Circular, the relevant criteria have been gone into. In Ekta Shakti Foundation vs. Government of NTC of Delhi, (2006) 10 SCC 337 the Supreme Court reiterated the principle that even if second view is possible, the policy decision otherwise reasonable, cannot be subjected to judicial review. In State of Tamil Nadu vs. K. Shyam Sundar, (2011) 8 SCC 737 , it was observed by the Supreme Court that the Court lacks expertise especially in disputes relating to polices of pure academic educational matters. In University of Mysore vs. C.D. Govinda Rao, AIR 1965 SC 491 it was reiterated that Court should be slow to interfere with the opinion and the decision expressed by the experts and it would not be wise and safe for the Courts to delve into the area. 6.1 In Maharashtra State Board of Secondary and Higher Secondary Education vs. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 the Supreme Court was examining the question canvassed before it as to whether under law, a candidate has right to demand inspection, verification and revaluation of answer books. 6.1 In Maharashtra State Board of Secondary and Higher Secondary Education vs. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 the Supreme Court was examining the question canvassed before it as to whether under law, a candidate has right to demand inspection, verification and revaluation of answer books. While dealing with the controversy, the Supreme Court inter-alia observed on the scope of intervention of the Court permissible in the academic matters. It observed thus: “.......As has been repeatedly pointed out by this court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded......” 6.2 The scope of judicial review is narrow and has its own confines when it comes to the academic matters and academic decisions. The Court is not an academician, nor expert in the field. In Thapar Institute of Engineering and Technology vs. Gagandeep Sharma, (2001) 9 SCC 157 , this dictum was stated by the Apex Court in the following words: “Prescribing the academic standards falls exclusively in the domain of special bodies like the Senate, Board of Governors and Syndicate etc. The court would normally not interfere with such prescribed standards and especially when they are intended to improve the academic standards in their respective institutes. The scope of judicial review in such matters would be limited.” 6.3 The providence of eligibility criteria for educational admissions, prescription of the mode and method of assessment, enactment of the criteria for passing the examinations and formulation of the academic and educational standards generally, are the matters falling within the exclusive sphere of the educational bodies, universities and boards, which are manned by the experts and educationalists in the field. The Court in exercise of extra-ordinary jurisdiction would not enter into this special domain, unless of course there is a palpable and per se arbitrariness in the decision complained of. Substitution of a different view by the Court in the cases where the decision is found to be with application of relevant considerations, would stand without legal wisdom and legal sanction. 6.4 For the aspects stated in paragraph No. 5.1 and for the discussion and reasons supplied in paragraph Nos. 5.2 to 5.5, it is not possible to hold the impugned circular prescribing formula for assessment of marks for preparation of final results of the 12th standard general stream students, to be irrational or arbitrary so as to require setting aside the same by this Court. None of the prayers in the petition could be granted. The petitioner is not entitled to any relief. 7. The petition stands dismissed as meritless. Notice is discharged.