Madras High Court
M.D.R. Kaniyan (Minor) Rep. By His ... vs The Secretary To Government School ... on 6 August, 2004
ORDER N.V. Balasubramanian, J.
1. The above writ petition has been filed for the issue of writ of mandamus to direct the respondents not to consider the students who have not taken the improvement examinations in all the six subjects including Aural/Oral Skill and practical examinations in the Higher Secondary Examination conducted by the State Board of School Examinations, Tamil Nadu, for the selection for Medical and Engineering Courses in the State of Tamil Nadu.".
2. The petitioner has filed the writ petition on behalf of his minor son Master M.D.R. Kaniyan, who has passed the Higher Secondary Certificate Examination (academic) conducted by the Tamil Nadu State Board for the academic year 2003-2004. He is the father and natural guardian of his minor son. His son has obtained the following marks in the Higher Secondary Examination conducted by the Tamil Nadu State Board in the subjects mentioned below:
Physics : 200 out of 200 Chemistry : 200 out of 200 Biology : 197 out of 200 Mathematics : 197 out of 200 He has also obtained the following marks in the Tamil Nadu Professional Colleges Entrance Examination (TNPCEE) conducted by the Anna University in the year 2004:
Physical Sciences : 46.43 out of 50 Biology : 48.21 out of 50 Mathematics : 42.17 out of 50".
His cut off marks for medical courses is worked out to be 293.14 and for Engineering Course is 287.10. He belongs to Backward Community. ".
3. The main grievance of the writ petitioner is that the Government of Tamil Nadu has evolved a scheme enabling the passed students to reappear in the Higher Secondary Examinations for improving their marks by issuance of G.O.Ms.No.1457 Education Department dated 7.10.1989 subject to certain conditions. The said Government Order was later modified by G.O. Ms. No. 142 School Education Department dated 12.9.2001. Under the amended Government Order dated 12.9.2001, the Government of Tamil Nadu has introduced two conditions in clauses 1 and 5 of the earlier Government Order and they are as under:
" 1. The students, who are willing to appear for the High Secondary Examination under improvement Scheme, should appear in all the six subjects including language subjects.
5. When appearing for six subjects under this mark improvement scheme, the marks obtained in the improvement scheme would only be taken for consideration for admission to the higher courses."".
4. The validity of G.O.Ms.No.142 School Education Department dated 12.9.2001 was the subject matter of consideration before a Division Bench of this court in Poovizhi, Minor vs. The Government of Tamil Nadu and others [(2002) 1 M.L.J. 590] and this court, upholding the Government Order, has held that the Government has rightly imposed a condition of writing all examinations in one go and not in instalments, keeping intact two chances for improvement examinations after passing the qualifying examination of Higher Secondary course. This court held that there was no arbitrariness in the two conditions incorporated by the Government of Tamil Nadu imposing appearance in all the subjects in the improvement examinations. ".
5. The case of the petitioner is that the candidates who take up the improvement examinations, take up examinations for a total mark of 1010 and they are not taking up examinations in practical i.e. in Physics, Chemistry and Biology as well as the Aural/Oral skill in Tamil or any other language and English. The petitioner referred to the mark sheet issued in favour of one A. Chinna Durai with reference to the marks obtained by him in the Higher Secondary Examinations conducted in March 2003 and in the improvement examinations taken up by him in March 2004. The petitioner therefore submits that the candidates who take up the improvement examinations are not taking up examinations in practical subjects and when the candidates are required to take up the examinations in the subjects, the candidates in the improvement examinations, should take up the examinations not only in theory subjects but also in practical subjects. The main grievance of the petitioner is that the improvement students appear only for written examinations and they do not appear for the Aural/Oral skill in the language and practical examinations in Physics, Chemistry and Biology subjects. Hence it is prayed that while G.O.Ms.No.142 School Education Department dated 12.9.2001 insists that the students who are willing to appear for the Higher Secondary Examination under improvement scheme, should appear in all the six subjects including language subjects on par with the first appearance students, they should appear not only in theory portion of the subjects but also in practical portion of the subjects in the Higher Secondary Examinations. One anomaly has been pointed out in paragraph 10 of the affidavit stating that one could pass the subject even by getting 26.67% in theory if 60% is obtained in practicals. The case of the petitioner is that it emphasizes the totality of theory and practicals as one unit and it is not permissible for the improvement candidates to take up only the written examinations and not the practical examinations. Another anomaly that has been pointed out by the petitioner who appeared in person is that if a student gets 50 out of 50 in practicals, he must reappear for the practicals examinations also as in the case of a student who has obtained 200 out of 200 in two subjects and 180 out of 200 in one subject. It is therefore stated that improvement students should take up the examinations in all the six subjects including the subjects in which he got 200 out of 200 and since the improvement students who take up examinations only in part of the subjects and not in all the subjects as one unit, the marks obtained by the improvement students should be ignored and selection should be done ignoring the marks obtained by the improvement candidates who have not taken up the theory and practical subjects or theory and aural/oral skill in language subjects. ".
6. We heard Dr. M.D. Raju Kumar who appeared as a party in person. We also heard Mr. V. Karthikeyan, learned Additional Government Pleader (Education). After hearing the arguments of the petitioner in person and the learned Additional Government Pleader (Education), we are of the view that though the points raised by the petitioner are interesting, but not acceptable. The Government of Tamil Nadu in G.O. Ms. No. 1457 Education Department dated 7.10.1989, while granting the benefit of improvement to the candidates to improve their performance in the subjects in which they have passed in the Higher Secondary Examination, allowed the candidates to appear for improvement of their performance in one or more subjects within the Group already offered two times only. They were also allowed to apply for improvement under the same pattern and syllabi in vogue at the time of their reappearance. The said G.O.Ms.No.1457 Education Department dated 7.10.1989 was subsequently modified by G.O.Ms.No.142 School Education Department dated 12.9.2001 to the effect that a candidate who wants to improve the marks, he must write the examinations in all the six subjects including the language subjects. The other modification that was made was when he writes the examinations in all the six subjects, the marks obtained in the improvement examinations will be taken into consideration and not the marks obtained earlier. It is also relevant to note that in another Government Order in G.O. Ms. No. 1202 Education, Science & Technology (VI) Department dated 26.12.1994, the Government has granted exemption to those candidates who have already appeared for practical examinations and who take up the improvement examinations from reappearing for practical examinations at the time of their subsequent appearance for qualifying of marks or for improvement of marks. In the same Government Order dated 26.12.1994, the candidates were given the option to redo the practical examinations along with the theory examinations. It is significant to note here that in the Government Order dated 12.9.2001, the Government has directed that the candidates who take up the improvement examinations, should write all the six subjects and there is no insistence in the said Government Order that such candidates should take up the practical examinations also. Another factor that is relevant is that the Government Order in G.O.Ms. No. 142 dated 12.9.2001 partially modified the Government Order in G.O.Ms. No. 1457 dated 7.10.1989, but the Government Order in G.O.Ms.No.1202 dated 26.12.1994 granting exemption from appearing in the practical examinations was not in any way modified or altered. The Government Order in G.O.Ms.No.1202 dated 26.12.1994 is still in force and under the said Government Order, we have already pointed out, the candidates are given option to appear for the practical examinations and it has also permitted such candidates not to redo the practical examinations at the time of their improvement examinations. Though the said Government Order in G.O. Ms. No. 1202 dated 26.12.1994 was issued at the time when the earlier Government Order in G.O. Ms. No. 1457 dated 7.10.1989 was in vogue, we are of the view that until that is repealed or modified by another subsequent order, the candidates who take up the improvement examinations need not take up the practical examinations also along with the written examinations in the six subjects, which, they are required to take up by virtue of the Government Order in G.O.Ms.No.142 dated 12.9.2001. We are of the view that the Government Order dated 12.9.2001 is specific as it is confined to written examinations as the words, 'to be written' occur in more than one place in the Government Order. If the intention of the Government was that the improvement candidates should take both written tests and practical tests, they could have used words in a sufficiently clear manner to include both of the tests. It is true that in the ultimate analysis the marks obtained in theory and practical subjects are taken into account, but on that account, it does not mean that the candidates who take up the improvement examinations should write all the six subjects in theory and should take up the practical examinations as well as the Government Order dated 12.9.2001 has not stipulated any such condition. It is also relevant to notice that the mark sheet issued by the Department of Government Examinations, a distinction is made between theory examinations and practical examinations and it is conceivable that the Government of Tamil Nadu did not want to disturb its earlier Government Order in G.O. Ms. No. 1202 dated 26.12.1994 when it issued the Government Order in G.O.Ms. No. 142 dated 12.9.2001. As we have already pointed out that so long as the Government Order in G.O. Ms. No. 1202 dated 26.12.1994 remains in force, the candidates who write the improvement examinations have option to take up the practical examinations along with the written examinations and hence the submission of the petitioner that the candidates who reappear for written examinations, should necessarily take up the improvement examinations in the practical subjects also is not acceptable to us. That apart, it will create other practical problem for the candidates as 50 marks are allotted for practical subjects and that marks are again sub divided into two compartments, one for the records and another for the practical tests conducted in the examinations. If the candidates are required to take up the practical tests, they have to undergo the course once again and submit their records on the basis of the performance in the laboratory and then only they will be eligible to take up the practical tests. The Government of Tamil Nadu, probably, realising these difficulties that may be faced by the candidates, has dispensed with the requirement of taking up practical examinations along with the written examinations for the improvement candidates and the marks secured in the practical tests earlier would be the marks in the practical tests in the improvement examinations also. We are also unable to accept the submission of the petitioner that since a candidate has to write his observation in the Record Book and also to write about the test conducted in the practical subjects, the candidates should write the examinations as the recording of the observation is only incidental and is done as part of the practical examinations and not de hors of the same.".
7. We also find that this court has considered a batch of writ petitions in W.P.Nos.16841 of 2004 etc. batch which were filed seeking a restraint against the students who passed their qualifying examinations by way of improvement along with the freshers for the consideration of admission in Medical and Engineering courses. The First Bench of this court, by judgment dated 2.8.2004, has held that so long as improvement scheme is in operation and not nullified by any judicial pronouncement or withdrawn by the Government, the improved candidates are entitled to compete with the freshers for admission into the courses, be it medical or otherwise. On the basis of the direction of this court, counselling for admission to Medical Courses and Engineering Courses are likely to commence in a day or two and we are of the view, if the case of the petitioner is to be accepted, the effect would be, to unsettle the effect of judgment rendered by this court, in a batch of writ petitions in W.P.Nos.16841 of 2004 etc. dated 2.8.2004. We are therefore of the view that the submission of the petitioner that the respondents should be prevented from considering the students who have not taken up the improvement examinations in all the six subjects including Aural/oral skill and practical examinations in the Higher Secondary Examinations conducted by the State Board of School Examinations, Tamil Nadu for the selection to Medical and Engineering Courses in the State of Tamil Nadu, is not sustainable in law as well as in the facts of the case. There is also another difficulty for the petitioner as he has not included all the candidates who appeared for the improvement examinations for the selection of Medical and Engineering courses in the State of Tamil Nadu. There is yet another difficulty for the petitioner in the sense that the petitioner has filed a writ petition in the batch of writ petitions considered by the First Bench of this Court wherein he has not raised the points that have been raised in the present writ petition and it is impermissible for the petitioner to file successive writ petitions seeking the same relief and therefore the writ petition is liable to be rejected. Though the writ petition is liable to be rejected for not impleading the necessary parties and also for not raising the points in the earlier writ petition, we have gone through the merits of the case as well and find that the case of the petitioner that the respondents should be prevented from considering the candidates who have taken up the improvement examinations only in theory papers, is not sustainable. ".
8. The petitioner has also argued that there is violation of Article 14 of the Constitution of India as both the freshers and improvement candidates are not treated alike as the freshers are taking up written examinations and also practical examinations while the improvement candidates are required to take up only the written examinations. We are of the view that the submission of the petitioner lacks substance as the improvement candidates have already performed the practical examinations and by the Government Order in G.O.Ms.No.1202 dated 20.12.1994, they are given the choice to redo the practical examinations. Moreover, it is not open to the petitioner to contend that the Government should couch the Government Order in such a manner that for improvement in the marks obtained in the examinations, the improvement candidates should take up the theory examinations and also redo the practical examinations. The policy of the Government when it permits the candidates to take up improvement examinations seems to be that the candidates who take up improvement examinations should write all six subjects and in so far as the practical subjects are concerned, the candidates are given the option to redo or not to redo the practical examinations. Hence, the question of violation of Article 14 of the Constitution of India does not arise. The other submission of the petitioner is that clause 1 of G.O.Ms. No. 1457 Education Department dated 7.10.1989 was modified by the Government Order in G.O.Ms.No.142 School Education Department dated 12.9.2001 to the effect that the improvement candidates should take up examinations for the subjects and the artificial distinction between the written examinations and the practical examinations is not warranted. However, we are of the view that the Government Order in G.O. Ms. No.142 dated 12.9.2001 has not modified the Government Order in G.O. Ms. No. 1202 dated 26.12.1994 and so long as the said Government Order G.O. Ms. No. 1202 dated 26.12.1994 remains in force, both the Government Orders in G.O. Ms. No. 1202 dated 26.12.1994 and G.O. Ms. No. 142 dated 12.9.2001 should be read together and if so read together, there is no anomaly or arbitrariness, as submitted by the petitioner as the marks obtained in the improvement examinations and the marks in the practical subjects would be clubbed together to ascertain the marks secured in each subject. Further, the G.O. Ms. No. 142 dated 12.9.2001 provides for the writing of the examinations in all six subjects and there is nothing in the said G.O. to show that the improvement candidates should redo the practical examinations also.".
9. The petitioner has referred to a copy of a letter issued by the Joint Director of the Department of Government Education dated 1.1.2004, but that letter has no relevance as it is not open to the Joint Director of the Department of Government Examinations to issue any direction contrary to the Government Order. As far as the anomaly pointed out by the petitioner is concerned, the anomaly is a common one in all examinations where the candidates take both the practical and written tests.".
10. Before parting with the case, we place on record, the help rendered by the petitioner, who appeared in person and he has also argued the case in an able manner and has placed before us all the copies of Government Orders and relevant decisions, on the point in issue. In fine, we are unable to accept the submissions made by the petitioner, who argued in person and the writ petition stands dismissed. No costs. Consequently, W.P.M.P. No. 23832 of 2004 for injunction is dismissed.".