Calcutta High Court (Appellete Side)
Akash Sinha vs The State Of West Bengal & Ors on 20 July, 2016
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Shivakant Prasad
W.P. 2496 (W) of 2016
Akash Sinha
-Vs.--
The State of West Bengal & Ors.
For the petitioner : Mr. Rajarshi Halder
Ms. Arpita Chatterjee
Ms. Purnima Halder
Ms. Aunkita Dutta
For the Respondent No. 6 : Mr. Saptansu Basu
Mr. Biswarop Bhattarchareya
Ms. Labanyasree Sinha
For the Council : Mr. Sanjoy Kr. Baid
For the State : Mr. Rajendra Chaturvedi
For the Respondent No. 7 & 8 : Mr. Utpal Bose
Mr. Balarko Sen
Heard on : 14.07.2016
C.A.V. on : 14.07.2016
Judgment on : 20.07.2016
SHIVAKANT PRASAD, J.
Chronological events leading to the instant application is that the writ petitioner passed Indian Council of Secondary Examination (ICSE) in the year 2014 securing good marks (Grade-A) in the said examination with EQ. No. 800766809 and received the ICSE pass certificate whose number being EQ. No. 90075754.
After the said examination he was admitted to Delhi Public School, Megacity, Kolkata Kalikapur, Raharhat, 24-Parganas (North) in Class-XI on 17.04.2014 in Commerce Branch with subject specifications "English, Commerce, Mathematics, Economics, Accounts, Physical Education", affiliated to Council of Indian School Certificate Examination (ISC) and his name was registered by the Council for Indian School Certificate Examination and obtained his registration card being Unique I.D. No. 5672096 issued by the Council for Indian School Certificate Examination with heading 'ISC-2016.' After promotion to Class-XII from Class-XI at Delhi Public School, Megacity, Kolkata he was obliged to take transfer from Delhi Public School, Megacity, Kolkata to St. Xavier's English School, Konnagar near his home on health ground. Both the Schools are affiliated to the Council of Indian School Certificate Examination (ISC) and on getting transfer certificate, he was admitted on 24.04.2015 in Xavier's English School, Konnagar with the Transfer Certificate being Serial No. DPSMK/TC/14-15/0255 dated 06.04.2015, having Registration No. D-7450 wherein it is clearly stated that 'PROMOTION HAS BEEN GRANTED' to Class-XII and he studied in the said School attending regularly paying the necessary fees which were duly received by the School Authority.
He appeared in the Test Examination of Class-XII as conducted by the Xavier's English School, Konnagar and the result of such examination was published and he was declared qualified by the School Authority in their notice board and he obtained 51% marks as shown in the selected candidates list Sl. No. 27 of such list.
Specific case of the petitioner is that classes had been suspended since third week of December, 2015 and the School Authority declared 29.01.2016 as the date of collection of Admit Cards of the students aspiring ISC, 2016 candidates and he visited his School to collect his Admit Card for the examination on 29.01.2016 but he was informed by the School Authority that his Admit Card for the examination had not been received by them.
On repeated enquiry by Mr. Rajib Sinha, father of the petitioner, the Principal informed him about the communications that she had done with Ms. Sangeeta Bhatia (Assistant Secretary) and Miss. Poonam (Deputy Secretary) officials of Council of Indian School Certificate Examination (CISCE) and the Principal also informed that the petitioner's Admit Card was not issued because the Board was of the opinion that the petitioner had not passed Class-XI test and not been promoted to Class-XII and that she tried hard to convince the Board that the petitioner was promoted to Class-XII by DPS Megacity and the transfer certificate and mark sheet issued by the School is a testimony to that and those were forwarded to the CISCE immediately after he was admitted on getting transfer certificate from DPS, Megacity; and she informed that all documents were sent to Board informing the Board that the student had studied in Class-XII for last one year; even then there was no outcome from the Board. The examination was due to start on and from 24th February, 2016 and to continue upto 4th of April, 2016.
It is contended on behalf of the petitioner that although, he was an eligible candidate yet he was in confused position about his future fate for not having obtained his Admit Card despite fulfilling all the criteria as stated in the Regulations of the Indian School Certificate Examination and even his Admit Card was not issued by the authority concerned for undisclosed reason for no fault of the petitioner due to whimsical unlawful, unreasonable, discriminatory act of the authority concerned.
Being aggrieved the petitioner moved this writ petition inter alia on the grounds that the purported act on the part of the authority of the Council in not getting his Admit Card for ISC, 2016 Examination has caused damage to the petitioner's career and violates the provision of Articles 14, 21, 21A and 51A(k) of the Constitution of India and against the Regulations of the Indian School Certificate Examination and Rules thereunder and the Delhi School Education Act, 1973.
Accordingly, the petitioner prayed for issuance of writ in the nature of mandamus commanding the respondents, their men, agents to forthwith issue Admit Card of ISC, 2016 Examination to the petitioner to enable him to appear in the examination which is due to start from 24th February, 2016 and further prayed for interim order directing them to issue provisional Admit Card immediately to allow the petitioner to appear in the said examination.
This Court by order dated 16.02.2016 on finding a prima facie case directed respondents to issue provisional Admit Card to the petitioner to enable him to appear in the said examination.
It would appear, therefore, that prayer (e) is corollary to the moot prayer (a) of the writ petition which has been granted to the petitioner but further direction was that the final result of the petitioner shall only be published with the leave of the Court.
Now, Mr. Rajarshi Halder learned Counsel for the petitioner has submitted for direction to the Council to publish the final result of the examination in respect of the petitioner and adverted my attention to the Rules and Regulations of the Council for Indian School Certificate Examination especially to Part II relating to Internal Examination which provides thus--
"Part II - Internal Examination
(i) It will be the responsibility of the Head of the School to ensure that promotion from Class XI is done on the basis of cumulative achievement level of the student throughout the year, in the subjects he/she has been registered for. For promotions, a candidate is required to have obtained at least 40% marks in four subjects including English on the cumulative average and a minimum attendance of 75% of the working days.
(ii) Socially Useful Productive Work and Community Service (Compulsory).
The assessment in "Socially Useful Productive Work and Community Service" will be made by the school and the result will count towards the award of the Certificate. The school will be required to follow the instructions sent by the Council in the matter of keeping records of the work and the assessment of each candidate in "Socially Useful Productive Work and Community Service."
B. Scheme of Examination 1.(a) The syllabuses in English (Compulsory) and in
Indian/Foreign/Classical Languages (Elective) have not been bifurcated. Questions will be set from the entire syllabus for the year XII examination.
(b) The syllabuses in Elective subjects (except Indian/Foreign/Classical Languages) are prescribed separately for Class XI and Class-XII. The syllabus prescribed for Class XI will be examined internally by the school and the syllabus for Class XII will be examined externally by the Council.
2. It will be the responsibility of the Head of the school to ensure promotion from Class XI to Class XII will be done on the basis of the cumulative achievement level of the student throughout the academic year in the subjects he/she has been registered for. For promotions, a candidate is required to have obtained at least 40% marks in a minimum of four subjects which must include English, on the cumulative average and a minimum attendance of 75% of the working days. No other criteria will be used for promotion from Class XI to Class XII. Promotions on trial/with re-examination with grace marks should not be granted from Class XI to Class XII. Transfer Certificate should not be issued with 'Promoted to Class XII' if the candidate has not met the required promotion criteria.
3. The prescribed syllabus for Class XII will be examined externally by the Council on the subject matter of the syllabus for each subject.
4. The result of the Indian School Certificate (Year-XII) Examination will be based on the external examination at the end of Class XII and on Socially Useful Productive Work and Community Service, evaluated internally by the School." It is submitted that in view of the aforesaid Rules and Regulations it is the responsibility of the Head of the School to assess the performance of a ward of the School on the basis of cumulative achievement throughout the academic year in the subject for which he was registered and that the candidate is required to have obtained at least 40% marks in a minimum of four subjects including English for his promotion.
Mr. Sanjoy Kumar Baid learned counsel for the Council has supported the decision of the Council in withholding the Admit Card of the petitioner forbidding him from ISC Examination, 2016 because the petitioner ought to have performed well in both half yearly and annual term examinations in Class XI as the minimum marks of 40% was not obtained by the petitioner in his half yearly examination as required by the said Rules and Regulations of the Council because candidates performance has to be assessed based on cumulative achievement throughout the year including internal examination, half yearly and annual examination performance and not only on the basis of yearly result.
Mr. Baid invited my attention to half yearly performance report of the petitioner placed at annexure R-13 to show that the petitioner had secured only 36% of marks. Although, as per his Annual Term Report at annexure R-14 he has secured marks more than 40% but there was no marks given in subject Economic and considering such report the Council had withheld Admit Card because he was not eligible to appear for the examination for not having performed well throughout the year as per the rules.
It is submitted that the writ is required to be dismissed for the following reasons--
(a) The Council for the Indian School Certificate Examinations (hereinafter referred to as the said Council) is an unaided autonomous educational body. The Council was established in 1958 by the University of Cambridge Local Examinations Syndicate with the assistance of the Inter-State Board for Anglo Indian Education. The Council is registered as a society under the Societies Registration Act XXI of 1860. The Council has not been created by any statute. No financial assistance is given by the Government to meet the expenditures of the Council. The Council is financially, functionally and administratively independent and autonomous. There is no existence of nay, far less a deep or pervasive, State control. All functions of the Council are not public functions nor are they related to governmental functions. The Council is not a 'State' within the meaning of Article 12 of the Constitution of India. A writ petition thus cannot be maintained against the Council for enforcement of its Regulations. "
(b) A writ of mandamus can be granted only in a case where there is a statutory duty imposed upon an authority and there is a failure on the part of that authority to discharge its such statutory obligation.
The chief function of a wit is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Therefore, in order that a mandamus may be issued to compel the authorities to do something, it must be shown that there is a statute, which imposes a legal duty, and the aggrieved party has a legal right under the statute to enforce its performance.
It is further submitted that the Council being a non-statutory autonomous body and constituted under the Societies Registration Act, the writ is not maintainable against it.
It is true that the Council is registered under Societies Registration Act but admittedly is a public body which regulates the educational institutions and their affiliation to the Council under the rule and so also the examination pattern, imparting education is undoubtedly a public function and writ can very well be maintained against such public body if it is found to violate the principle of natural justice and for not adhering to the Rules and Regulations. Annexure 'R-2' of the affidavit-in-opposition reflects that Xavier School uploaded the documents to the School through its online portal on 5th June, 2015 in response to Council's communication to the School through its online portal on 14th May, 2015 asking it to upload the petitioner's consolidated Class XII progress report showing marks of all term examination, half yearly and annual examination which in the opinion of the Council was necessary in view of regulation 1 of Part-II of Chapter-II (supra). Vide Annexure 'R-3'Council informed that the candidate has failed to secure minimum 40% mark in Class XI in English and other three subjects by taking into consideration the overall marks score in Class XI and requested the School authority to remove the transfer request as the candidate cannot be permitted to take transfer admission in Class XII. To support this contention Mr. Baid drew my attention to Rule 8(d) of CISCE RULES FOR AFFILATION which read thus--
"8.(d) Prior approval for the admission of pupils, on transfer, to classes IX, X, XI and XII, is to be obtained from the Chief Executive and Secretary of the Council. Pupils admitted without due approval will not be accepted for the Council's examinations. Routine checks will be carried out to ensure this requirement is adhered to by all Schools."
Provisions for Awards and Conditions for Awards are akin to the Regulations and Syllabus of Indian School Certificate Examination which provides as under--
1. PASS CERTIFICATES will be awarded to candidates who at one and the same examination attain the pass standard in four or more subjects which much include the subject English and have attained a pass grade in SUPW and Community Service as examined/assessed internally by the School.
2. SUPPLEMENTARY PASS CERTIFICATES will be awarded to candidates who have obtained PASS CERTIFICATES and who appear in a subsequent examination and attain the pass standard in one or more subjects.
3. STATEMENT OF MARKS will be issued to all candidates who appeared for the examination.
In support of the above submissions of Mr. Baid has argued that the DPS School granted a Transfer Certificate to the petitioner dehors the Regulations of the Council and Xavier School admitted him in violation of Regulations of the Council whereas the Council has acted well within its Regulations as the writ petitioner is not an eligible candidate to take Board Examination conducted by the Council in 2016 and relied on the reported decisions viz, Saurav Maharana Vs. Council for the Indian School Certificate Examinations and Ors. reported in 2007(II) OLR 595; Milky Sodhi D/o G.S. Sodhi through her Natural Guardian, Mr. G. S. Sodhi Vs. Union of India (UOI) through Ministry of Human Resources, Council for the Indian School Certificate Examinations through Assistant Secretary, Assistant Secretary, Council for the Indian School Certificate Examinations and Seth Anand Ram Jaipuriya School through Principal reported in MANU/UP/1178/2008; Council for Indian School Certificate Examination versus Isha Mittal and another reported in (2000) 7 Supreme Court Cases 521; Regional Officer, CBSE versus Kr. Sheena Peethambaran and others reported in (2003) 7 Supreme Court Cases 719.
Now, I am required to appraise the proposition laid in the aforesaid cited judgments in the context of factual aspects of the instant case.
In case of Saurav Maharana (Supra) wherein it has been observed that permission for appearing and declaration of result of I. Sc. examination was the issue. Petitioner appeared in the I. Sc. Examination only on the strength of an interim order of High Court in a special circumstance. In the cited case the petitioner passed I.C.S.E. Examination in the year 2005 scoring 80.6% of marks from Jayashree Chemical Schools, Ganjam (opp. party No. 3) and took admission in Class-XI of the same school in the month of August of the same year and appeared in the First Terminal Examination held in the month of August, 2005 conducted by the said Jayashree Chemical Schools, Ganjam and prosecuted his study there up to 2.12.2005. Due to shifting of residence of his parents from Berhampur to Kansbahal and for some other reasons the petitioner took Transfer Certificate from Jayashree Chemical Schools on 3.12.2005 and got himself admitted to Class-XI Montfort School Complex, Kansbahal under Sundargarh district in the month of February, 2006 which was duly intimated by the Principal of Montfort School to the Council. That due to serious heart problem of his mother and shifting of residence from Berhampur to Kansbahal, he could not prepare well for the Annual Examination of Class XI and as such the Council called upon the School concern to clarify as to how could the petitioner be promoted to Class XI passing only three out of six subjects in Class XI examination.
In the said set of facts the Hon'ble Judge held that considerations of equity cannot prevail over law and do not permit a Court to pass an order contrary to law and Council cannot be directed to disobey the Regulations and guidelines made by the Council itself and the result of the petitioner cannot be published as the petitioner appeared in the ISC Examination only on the strength of an interim order of High Court. It shows that in the cited decision that candidate had not secured required percentage of marks in the Annual Examination of Class XI and as such, he was not eligible to prosecute his studies in Class XII and to appear in ISC Examination conducted by the Council.
In respectful consideration of the decision cited above I am of the view that factual foundation of the said case is quite distinguishable from the facts and circumstances of the instant case as the petitioner had secured considerable very good percentage of marks in Indian Certificate of Secondary Education Examination, 2014 as per statement of marks (Annexure- P1). Annul Term Report Card annexed with the Transfer Certificate by DPS, Newtown, Kolkata shows that he had secured overall 41.5% marks in Class XI (English 63%, Commerce 48%, Accounts 48% and Physical Education 48%) with Remarks:- ' Akash is docile in nature. More effort needs to be put in to show remarkable improvement. Ready for Class XII.' It means that the petitioner had secured more than 40% marks in his Annual Term Report in four subjects including English on the basis of which the transferee school namely Xeiver's English School (Senior), Konnogar took his admission on transfer and was given registration card being Unique I.D. No. 5672096 issued by the Council for Indian School Certificate Examination with heading 'ISC-2016.' This exercise on the part of the Council in my considered opinion was in view of rule 8(d) of CISE RULES FOR AFFILIATION which reads thus , "Prior approval for the admission of pupils, on transfer, classes IX, X, XI and XII, is to be obtained from the Chief Executive and Secretary of the Council. Pupils admitted without due approval will not be accepted for the Concil's examinations. Routine checks will be carried out to ensure this requirement is adhered to by all the schools." Result for Pre. I.SC/Selection Test, 2015 shows that petitioner had secured 51 % marks. Such performance was obviously taken into consideration while assessing the cumulative performance of the petitioner throughout the year by said Xeiver's English School.
The Principal of Delhi Public School (DPS), Megacity, Kalikapur, Rajarhat, Kolkata respondent no. 6 in his affidavit-in- opposition has submitted that the petitioner was admitted to DPS after qualifying in the ICSE having met the eligibility criteria prescribed by DPS for admission in Class XI after screening test and that the petitioner exhibited a sense of determination to improve and his annual marks were considerably favourable and in the final term he had shown significant improvement in Mathematics and Commerce although he was still struggling in economics. With an overall appreciation of his performance over the whole year and the upward learning curve assessed for the particular student the class teacher had found him ready for promotion to Class XII as the petitioner had shown significant improvement in all the subjects in the annual term as compared to the half-yearly examination. This clearly indicated that he was actually putting in a genuine effort to improve in his studies.
Mr. Saptansu Basu learned counsel for respondent no. 6 submitted that DPS while complying with the guidelines and regulations of the Council the Principal and teachers of a School do have an element of discretion to motivate and nurture the merits of each student in the matter of promotion from Class XI to Class XII. The School authorities felt that there was every possibilities that if the petitioner was considered as a special child , was held back he could have gone into severe depression which could have been detrimental to his academic career and his health as he was reportedly suffering from mental depression and nervous ailments as reported by his father and the School authority promoted the petitioner in compliance of the Rules and Regulations in judicious exercise of discretion of DPS authorities. Transfer from DPS to Xavier's English School, Konnagar was given to the petitioner finding him physically challenging to cover the distance from his home to the DPS campus on due compliance of all prescribed formalities. So far DPS is concerned no issue had been raised by the Council with regard to promotion of the petitioner at any stage.
Mr. Basu further pointed out that DPS School has 100% success with National and State toppers, which can be observed from the Test Results (Annexure-C) and supported his stand in the matter of promotion of the petitioner to class XII with the submission that it cannot be denied that Justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend the before Justice. This is what has been observed in paragraph 52 while interpreting the dictionary meaning of the word "review" in case of Lilly Thomas and others v. union of India and others reported in (2000)6 SCC 224.
Mr. Utpal Bose appearing on behalf of respondent nos. 7 and 8 has submitted that respondent no. 7 had acted on good faith and accepted the documents viz. Transfer Certificate, Report Cards of the half-yearly examination and the Annual Term Examination previously passed by the petitioner, as a result, of which the petitioner was promoted to Class XII and the Report Card maintained a total percentage of 36% in the half-yearly and 40% in the Annual Examination with a total percentage of attendance of 75.25% as per ISC Regulations of the Council and he fulfilled all the criteria for appearing in the ISC Examination, 2016 as per the regulation.
In counter affidavit in reply to the affidavit-in-opposition of the respondent nos. 2 and 3 it is contended that if the final examination of Class XI mark-sheet is considered then it is clear that petitioner passed four subjects including English with an average of 63 % in English and 48% of other three papers and if five papers has been considered then average would be 51% in such four papers, and in half-yearly of Class XI he got 58% in two English paper and other three highest papers secured 50, 41 and 34 and their average including English were 45.5% on calculation. The Regulation requires that a candidate is required to obtain at least 40% marks in four subjects including English on the cumulative average for promotion and if all other Internal Examination have been considered as taken by the DPS Megacity, Kolkata including half-yearly and annual examination in Class XI, then it would be more than as required and the Pass Certificate of Class XI and Transfer Certificate issued by the Head of the DPS Magacity, Kolkata with clear remark "Promotion has been granted to Class XII" is well within the Regulations of the Council.
I am fully in agreement with the contentions put forth by Mr. Rajarshi Halder, Mr. Saptansu Basu and Mr. Utpal Bose that there has been no violation of the Rules, Regulations and Guidelines of the Council because it would appear on calculation of the average marks of English (Paper 1 - 66, Paper 2 - 50) being 58% + Accounts 41 + Economics 34 + Physical Science 50 and the marks taken together comes to 183 and on average the marks obtained by the petitioner would be 45.75 percentage.
In case of Milky Sodhi (supra) wherein it was held that the petitioner could not obtain 40 percent marks in four subjects including English therefore, as per clause 6 of chapter IV of Guidelines and Regulation--D being the criteria of promotion, the petitioner was not eligible to be promoted from Class XI to Class XII. Therefore, the decision relied upon by Mr. Baid is distinguishable from the instant case.
In case of Council for Indian School Certificate Examination (supra) it was held thus--
"It is the obligation of the High Court to decide the matters before it in accordance with law. If the law was, as the High Court has observed (quoted in para 3), in favour of the appellant before it, it was obliged to make an order in favour of the appellant. Considerations of equity cannot prevail and do not permit a High Court to pass an order contrary to the law."
It would be profitable for appreciation of factual aspects of the case to reproduce observations made in paragraphs 3 & 4 which reads thus--
"3. The order under challenge was passed in an appeal against interim orders on the respondent's writ petition. The order states:
.. Actually, the relief which the Court have granted finally has been granted by means of the interim order. If the career of the student had not been involved, this Court would have certainly interfered with such orders, but after the declaration of the result and issuance of the marks-sheet, the petitioner might have taken admission in any university or college. Hence, it would not be appropriate for this Court to allow this special appeal because the entire career of the student would be adversely affected.
In view of the aforesaid reason only, we dismiss the appeal but observe that this special appeal has been dismissed considering the facts and circumstances of the present case only and it would not be a precedent for similar other cases."
"4. It is the obligation of the High Court to decide the matters before it in accordance with law. If the law was, as the High Court observes in the passage quoted above, in favour of the appellant before it, it was obliged to make an order in favour of the appellant. Considerations of equity cannot prevail and do not permit a High Court to pass an order contrary to the law."
I am in respectful consideration of the decision that consideration of equity on sympathy ground has no place contrary to law in violation of Rules and Regulations of the Council. But in the instant case as I have discussed in the foregoing paragraphs that in assessing the cumulative performance throughout the year of the petitioner as required under the Regulations under Part II and the Guidelines reproduced hereinabove and considering his internal assessment by DPS Newtown Kolkata, the petitioner having secured more than 40% of marks was considered eligible for appearing in ISC Examination, 2016.
In case of Regional Officer, CBSE (supra), the student being the respondent no. 1 of the cited decision herself was declared failed in her examination for Class IX.
The plea raised by the appellant Board was to the effect that for taking up examination for Class X a student must complete a regular course of studies for Class IX from an institution affiliated to the Board. Since Respondent no. 1 had not passed her Class IX examination she was not eligible for appearing in the examination in Class X. Bye-law 16 relates to Private Candidate which read thus--
"16. Private candidate' means a person who is not a regular candidate but, under the provisions of the bye- laws, is allowed to undertake and/or appear in the All- India/Delhi Senior School Certificate Examination or All- India/Delhi Secondary School Examination of the Board."
Bye-law 21 provides for a person eligible to appear as a Private Candidate for All India Secondary School Examination which reads thus -
(i) A candidate who had failed at the All India Secondary School Examination of the Board, will be eligible to reappear at the subsequent examination as a private candidate in the syllabus and text books as prescribed for the examination of the year in which he will reappear.
(ii) Teachers serving in institutions affiliated to the Board,
22. (v) Those regular Candidates who have failed to obtain promotion to class X of the school affiliated to the Board or any other recognized Board shall not be admitted to the Delhi Secondary Examination of the Board as private candidates."
In view of the above Bye-laws of CBSE dealing with eligibility criteria for the candidate to appear in Board's Examination, the Hon'ble Apex Court held that merely forwarding of an examination form by an Institution affiliated to the examining body is no surety that examining body would necessarily permit the candidate to undertake the examination. The forms after being sent are scrutinized and checked by the examining body.
Quoting the decisions reported in Guru Nanak Dev University v. Parminder Kr. Bansal, [1993] 4 SCC 401 and A. P. Christians Medical Educational Society v. Government of Andhra Pradesh and Anr. Etc. Etc., [1986] 2 SCC 667 the Hon'ble Apex Court observed in paragraph 7 of the cited judgment which reads thus--
"In the background of the law as laid down by this Court, we find that in the case in hand the fact situation was even worse as compared to the decision cited above. The student, namely, respondent no. 1 had failed to clear her class IX examination which was a necessary requirement as provided under the bye-laws of the Board so as to be entitled to appear in the class X examination conducted by the Board. Despite notice, no one has put in appearance on behalf of the respondents no. 1 and 2 to indicate any fact or circumstance so as to take any different view. Condoning the lapses or overlooking the legal requirements in consideration of mere sympathy factor does not solve the problem rather breeds more violations in the hope of being condoned. It disturbs the discipline of the system and ultimately adversely affects the academic standards."
I have respectfully gone through the decisions and bestowing upon an anxious consideration to the facts and circumstances of the case I am of the view that the ratio of decision is not well-nigh within the facts situation of the instant case as I have already found on his scrutiny of the marks obtained in half-yearly, sent up test report and annual examination report that the Head of the School had undertaken the responsibility to ensure the promotion of the petitioner from Class XI on the basis of cumulative achievement throughout the year. The marks awarded to the petitioner in his half-yearly examination in my considered opinion was not calculated on average on its right perspective who had secured more than 40% marks on cumulative average of four subjects taken together. That apart, result of the Annual examination is the expression of cumulative assessment of performance of a student throughout the year in my considered opinion.
Therefore, the interim order granting the main prayer of the petitioner directing the Council to allow him to appear in ISC Examination, 2016 was passed on finding prima facie case of the petitioner which merges with the finality to this effect that the respondent nos. 2 and 3 the Council shall publish the result of the petitioner for ISC Examination, 2016 and to issue ISC Examination Certificate, 2016 to the petitioner within 15 (fifteen) days from the date of receipt of a copy of this judgement.
Ergo, writ application is allowed. However, there shall be no order as to costs.
Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)