Allahabad High Court
Pradeep Kumar Chaudhary vs Union Of India (Uoi) And Ors. on 22 July, 2004
Equivalent citations: 2004(4)AWC2888
Author: Arun Tandon
Bench: Arun Tandon
JUDGMENT Arun Tandon, J.
1. Heard Sri Uma Nath Pandey on behalf of the petitioner. Nobody is present on behalf of the Union of India. Respondent Nos. 2 and 3 are represented by Sri Vinod Swaroop.
2. On behalf of the Central Board of Secondary Education Sri H. N. Pandey has filed an application under Chapter XXII Rule 5 of the High Court Rules stating therein that the writ petition is liable to be dismissed for non-impleadment of the Board, which is a necessary party to the writ proceedings. Along with the said application, the Central Board of Secondary Education has also filed its counter-affidavit giving reply to the allegations made in the writ petition. Rejoinder-affidavit to the said counter-affidavit has been filed today, which may be taken on record.
3. Having regard to the aforesaid facts, this Court is of the opinion that the academic career of the student should not be permitted to be jeopardized on a hyper-technical ground of non-impleadment of Central Board of Secondary Education as suggested by the counsel for the respondent specifically when the Board has already filed counter-affidavit and is representing through a counsel before this Court. It is just and proper that the Central Board of Secondary Education, Delhi, may be impleaded as respondent No. 4. No notice is required to be issued to newly added respondent No. 4 as it is already represented by a counsel.
4. Petitioner is directed to implead the Central Board of Secondary Education through its Secretary as respondent No. 4 during the course of day.
5. Since the Central Board for Secondary Education has been impleaded as respondent No. 4 with the leave of this Court, the application filed by the said Board for dismissing the writ petition for want of necessary party is hereby rejected.
6. Now the Court will proceed to consider the writ petition on merits.
7. This writ petition has been filed by a student of Navodaya Vidyalaya. Basti against an order dated 16.4.2003, whereby the petitioner was transferred from Navodaya Vidyalaya, Basti to Navodaya Vidyalaya, Faizabad. In the writ petition it has been stated that the said order of transfer was passed only because the petitioner, along with certain other students, during a cricket match, has indulged in marpeet. Despite time being granted by this Court no counter-affidavit on behalf of the respondent Nos. 2 and 3 has been filed, as such the allegations made in the writ petition are taken to be correct, which established beyond doubt that the impugned order of transfer was passed only because of indulgence of petitioner in marpeet during a cricket match. It has further been stated in the writ petition that out of 12 students, who were involved in the said incident. 5 students were permitted to continue at Basti itself. Having regard to the totality of the charge as borne out from the record, this Court is of the opinion that the petitioner, who is student of Class XII, should not have been transferred instead minor punishment like warning, fine etc. must have been imposed. This Court cannot lose sight of the fact that young boys during matches do indulge in acts of misbehaviour but the aid acts are momentary and are not an outcome of any deliberate act. After all boys shall remain boys. The transfer order passed against the petitioner, transferring from Navodaya Vidyalaya, Basti to Navodaya Vidyalaya. Faizabad, is too harsh a punishment in the facts of the case and cannot be legally sustained and is hereby set aside.
8. This Court had granted an interim order in favour of the petitioner on 3.9.2003, whereby the petitioner was permitted to continue his studies in the institution at Basti itself. Under the interim order, the petitioner was re-admitted in the institution at Basti on 6.9.2003 and has also submitted his examination form for appearing in the class XII examination to be conducted by the Central Board of Secondary Education. On an application filed by the petitioner, this Court by means of the order dated 25th February, 2004, permitted the petitioner to undertake the said examination provisionally. It is not in dispute that in pursuance of the order of this Court the petitioner has also undertaken the said examination.
9. The Central Board of Secondary Education has. However, not declared the result of the petitioner on the ground that the petitioner has not achieved the prescribed minimum attendance of 75% as required by the Examination Bye-laws 13, framed by the Central Board of Secondary Education, New Delhi. Clauses 13 (i) and 13 (ii) of the bye-laws are being quoted hereunder :
"13. A regular course of study :
"13. I (i) The expression "a regular course of study" referred to in these bye-laws means at least 75% of attendance in the classes held ; counted from the day of commencing teaching of classes X/XII upto the 1st of the month preceding the month in which the examination of the board commences. Candidates taking up a subject(s) involving practicals shall also be required to have put in at least 75% of the total attendance for practical work in the subject in the laboratory. Heads of institutions shall not allow a candidate who has offered subject(s) involving practicals to take the practical examination(s) unless the candidate fulfils the attendance requirements as given in this Rule.
(ii) The candidates who had failed in the same examination in the preceding year and who rejoins classes X/XII shall be required to put in 75% of attendance calculated on the possible attendance from the 1st of the month following the publication of the results of that examination by the Board upto the 1st of the month preceding the month in which the examination of the Board commences."
10. It is further admitted to the parties that the percentage of attendance of the petitioner has been worked out from the date study in class XII was started in the institution at Basti till the end of the academic session and on that basis it is stated that the petitioner has achieved an attendance of 44.4% only. From the bye-laws, which has been quoted above, it is worthwhile to notice that normally a candidate is required to have at least 75% of attendance in the classes held ; counted from the day of commencement of teaching of the class XII upto the 1st of the month preceding the month in which the examination of the Board commences. However, clause (ii) provides that the candidates who had failed in the same examination in the preceding year and who rejoins classes shall be required to put in 75% of attendance to be calculated on the possible attendance from the 1st of the month following the publication of the results of that examination by the Board upto the 1st of the month preceding the month in which the examination of board commences.
11. The joint reading of the aforesaid provisions would establish beyond doubt that 75% attendance is to be taken into consideration from the possible attendance from the 1st of the month from which a particular student is normally accepted to attend the classes. Further reference may also be had to the Rule 14 of the Examination Rules, which provides for condonation of shortage of attendance in various circumstances mentioned in the said rule itself. Sub-rule (4) of Rule 14 reads as under :
"14 (iv) The following may be considered valid reasons for recommending the cases of the candidates with attendance less than the prescribed percentage :
(a) Prolonged illness ;
(b) Loss of father/mother or some other such incident leading to his absence from the school and meriting special consideration ; and
(c) Any other reason of similar serious nature ;
(d) Authorised participation in sponsored tournaments and sports' meets of not less than inter-school level and at N.C.C./N.S.S. camps including the days of Journeys for such participation shall be counted as full attendance."
12. Under the said Rule 14 the requirement of 75% attendance can be relaxed for the reasons mentioned in sub-rule (iv) of Rule 14. Sub-clause (c) of sub-rule (4) of Rule 14 provides for condonation of shortage of attendance for any other reason of similar serious nature.
13. In the facts and circumstances of the case, since the petitioner was transferred from Basti to Falzabad and since this Court has quashed the order of transfer on the ground that the same was illegal and further since the petitioner was not permitted to take the classes at Basti because of an illegal order, which now ceases in the eye of law as same has been quashed, it was practically impossible for the petitioner to attend the classes between 16th April, 2003 to 6th September, 2003. Under the interim order of this Court, referred to above, the petitioner was re-admitted in the institution at Basti only on 6th September, 2003. The petitioner cannot be directed to perform an impossible task of achieving the attendance of 75% after taking into consideration the period when he was not permitted to attend the classes at Basti, i.e., between 16th April, 2003 to 6th September, 2003.
14. For the purposes of giving reasonable and fair interpretation to rules, providing for requisite attendance and relaxation of shortage thereof, it is just and fair in the facts and circumstances of the case that the period between 16th April, 2003 to 6th September, 2003, be excluded for the purposes of counting the attendance of the petitioner in class XII.
15. It is accordingly directed that the respondents shall re-determine the percentage of petitioner's attendance after excluding the period between 16th April. 2003 to 6th September. 2003 and if thereafter the petitioner has achieved 75% of attendance, the respondents shall declare the result of petitioner within one month from today. For the purposes of calculation of the attendance of the attendance as such, the Principal of the Navodaya Vidyalaya Basti. is directed to submit the relevant record to the Central Board for Secondary Education. New Delhi, within two weeks from today.
16. With these observations, writ is allowed. No order as to cost.