Madhya Pradesh High Court
Sheela vs Board Of Secondary Education on 19 December, 2016
1
W.P.No. 8643/2016
(Sheela Vs. The Board of Secondary Education & Others)
19.12.2016
Shri Nitin Agarwal, Advocate with Shri Prashant Sharma,
Advocate for the petitioner.
Shri J.P. Mishra, Advocate with Shri Gaurav Mishra,
Advocate for the respondent no.1 and 2/Board.
1. The present petition filed under Article 226 of the Constitution of India seeks for the following reliefs:
(i)That, the respondent Board kindly directed to permit the petitioner for fill up the examination of D.El.Ed. 2 nd year course Session 2015-16.
(ii)That, the respondents kindly further directed to permit the petitioner to appear in the D.El.Ed Second year examination Session 2015-16 which is going to be start w.e.f. 28.12.2016.
(iii) That, the respondent Board kindly also directed to declare the result of the petitioner after permit her in the reexamination.
(iv) That, other relief doing justice including cost be ordered.
2. Learned counsel for the rival parties are heard on the question of admission.
3. The factual matrix involved in the present case is that the petitioner was admitted to Two Year D.El.Ed Course in July 2014. In the 1st year Examination, the petitioner appeared in August, 2015, but failed. The supplementary examination of the 1st year was held in December,2015 in which the petitioner appeared and passed. Thereafter the petitioner attended the 2 nd year Classes/Training. Thereafter, it is submitted as per para 5.5. of the writ petition that due to some urgent work (without specifying the same), petitioner was unaware of the requirement 2 W.P.No. 8643/2016 of filling up the examination form, for which no intimation was given by the institution respondent no.3. As such, it is contended that the petitioner has not availed this second chance to pass the examination.
4. The Board in its return has though sought dismissal of the petition, but stated thus in para 6:
That, the petitioner took admission for pursuing 2 nd Year D.El.Ed Course in Academic Session 2014-15 and she has cleared the said Dl.El.Ed 1st Year Examination in year 2015 and she have been promoted for D.Ed. 2 nd year and she have to appear in the D.Ed 2 nd year main examination in the month of August, 2016, but she could not fill the examination form and also could not appear in the said examination, therefore as per amended Clause 9 of said order dated 17.12.2012, she may appear in the said 2 nd year examination as private students, and for that purpose she never approached to the Board, she directly filed the instant petition before this Hon'ble Court in the month of December,2016. At this juncture, petitioner could not be permitted to appear in the D.El.Ed 2 nd Year Examination as regular student. Therefore, the instant petition is merit less and not sustainable in the eye of law.
5. From the above, it is evident that the Board is ready to concede one more chance to the petitioner to appear in the forthcoming supplementary examination in December,2016 in terms of amended Clause 9 (vide R-1).
5.1 Stand of the Board appears to be a bit contradictory and therefore need arises to explain the contradiction to resolve the issue raised herein.
6. Prior to coming into effect of the order dated 17.12.2012 R-1, for a certain period of time, D.Ed D.El.Ed students could availed as many chances as they could to pass the examination 3 W.P.No. 8643/2016 in the said course without any restriction. However, the said order R-1 introduced restrictions. Clause 6 and Clause 9 were amended. The amended Clause 6 and 9 are reproduced below:
1- fcUnq dzekad 6 &% ^^l=k 2012&2013 ls Mh-,M izFke o"kZ ds Nk=kksa dks ijh{kk mRrh.kZ djus gsrq vc dsoy fujUrj nks volj ¼eq[; rFkk vuqxkeh ijh{kk½ iznku fd;s tkosaxsA^^ ;fn vH;kFkhZ nks fujUrj voljksa dk ykHk ysus ds mijkar Hkh izFke o"kZ vFkok f}rh; o"kZ dh ijh{kk esa vuqRrh.kZ jgrk gsS rks vH;kFkhZ dks iqu% izos'k ysdj fu/kkZfjr ikB;dze iw.kZ djuk gksxkA 2- fcUnq dzekad 9 &% ^^Mh-,M ijh{kk esa dksbZ Hkh O;fDr Lok/;k;h mEehnokj ds :i esa ugha cSB ldsxk] fdUrq izFke ,oa f}rh; o"kZ ds fu;fer izf'k{k.kkFkhZ dks tks izFke volj dh ijh{kk esa vuqrh.kZ gks x;k gks] ;k U;wure mifLFkfr dk izfr'kr iwjk djus ds i'pkr Hkh fdUgha vifjgk;Z dkj.kksa ls ijh{kk esa u cSB ldk gks rks mls Lok/;k;h :i ls ijh{kk esa lfEefyr gksus gsrq mlh l=k dh vuqxkeh ijh{kk esa dsoy ,d volj vksSj fn;k tkosxkA mijksDr ¼c½ vuqlkj la'kksf/kr vkns'k leLr 'kkldh;@v'kkldh; MkbV laLFkku ,oa izf'k{k.kkFkhZ;ksa ij vkxkeh o"kZ 2013 dh Mh ,M ijh{kk ls ykxw gksaxsA 6.1 From a bare perusal of the amended Clause 6, it is evident that for the D.El.Ed Session 2012-13, the students were given a maximum number of two chances (Main and thereafter Supplementary) to clear the course. If the candidate fails to pass the examination despite availing the said two chances, then the only course prescribed is to take admission afresh in the said course.
6.2 As regards the amended Clause 9, the same is in shape of explanation/proviso to the amended Clause 6. Clause 9 is in the nature of proviso/exception to the above clause 6, essentially to cater to certain unforeseen circumstances beyond the control of candidate and is meant for those candidates who fail in the first attempt (main exam) or despite having necessary 4 W.P.No. 8643/2016 minimum class attendance could not appear in first attempt (main exam) due to unforeseen circumstances by allowing them to appear in the supplementary examination of the same session but as a private candidate.
6.3 Pertinently, in the earlier round of litigation, orders were passed by the Coordinate Benches at the Principal seat and as well as at Indore to the effect that the order dated 17.12.2012 R-1 would apply to such D.El.Ed students who were admitted on or subsequent to the date of this order.One such matter was Reena & Ors Vs. Board of Secondary Education in W.P. No. 3502/2014 decided on 30.11.2015.
7. Pertinently, the said decision of Reena(supra) was explained by another coordinate Bench at the Principal Seat while delivering the judgment dated 14.09.2016 in W.P. No. 12873/16 in the case of Smt. Ankita Shukla Vs. State of M.P., to the extent of distinguishing the judgment in Reena's case.
The case of Smt. Ankita Shukla analyzed the decision of Apex Court in the case of Zile Singh Vs. State of Haryana & Others reported in 2004(8) SCC 1 and found that the said decision laid down that since the provision under consideration before the Apex Court did not provide for any date of its applicability, the Apex Court held that the same would apply prospectively. Thus, the case before the Apex Court was found to be centered around the provision which was silent in regard to the date of its applicability. The coordinate Bench in the case of Smt. Ankita Shukla(supra) was thus of the view that the matter before the Apex Court in the Zila Singh's case, was inapplicable to the fact situation prevailing in Reena's case for the reason that in Reena's case, the order dated 17.12.2012 which was under
consideration, specifically contained the applicability clause 5 W.P.No. 8643/2016 which expressly applied the amendment to the 2012-13 academic session (July 2012 to June 2013) or for examinations to be held after 17.12.2012 .
7.1 From the above discussion, it is evident that the order dated 17.12.2012 made the amended provision applicable for the academic session 2012-13 and thus applied to all those students who appear in any D.El.Ed examination to be conducted on or after 17.12.2012 provided that for availing the second attempt, two contingencies need to co-exist. The first being fulfillment of minimum attendance requirement while the second being the existence of unforeseen circumstances preventing the student from appearing in the main examination.
8. Coming to the factual matrix involved in the present case, it is seen that the petitioner has not pleaded that there was any unforeseen circumstance which was beyond her control dissuading her from appearing in the 2 nd chance which she could have availed in August 2016 for passing the 2 nd year exam. The petitioner has merely pleaded that she was engaged in some urgent work at the relevant point of time as per para 5.5 of the writ petition and therefore was not aware of the requirement of filling up of examination form. This reason in the considered opinion of this Court is attributed solely to the petitioner and therefore cannot be termed as unforeseen.
9. Moreso, this Court cannot ignore the fact that the State realizing the rapidly decreasing quality of teachers especially for imparting Primary and Middle School Education which is now a fundamental right under Article 21A of the Constitution of India, has framed NCTE (Recognition Norms & Procedure) Regulations 2014 in which the quality and quantity of the syllabus of D.El.Ed has been drastically enhanced. Moreso, the 6 W.P.No. 8643/2016 said Regulations which are statutory in nature have placed a bar of maximum period of 3 years for completion of the 2 year D.El.Ed Course. Thus, the amended order dated 17.12.2012 granting two opportunities (main and supplementary) to a candidate to clear the 2 year D.El.Ed course are further circumscribed by the said statutory bar by prohibiting any student to complete the two year course, beyond the maximum period of three years. Accordingly, even if a candidate is entitled to avail the 1st or 2nd chance as per the amended Clause 9 of the order dated 17.12.2012 and in case the said availing leads to a situation where the total period required for completion of D.El.Ed course consumes more than three years, then the statutory bar under Clause 3 of NCTE (Recognition Norms & Procedure) Regulations 2014 would come in the way for the obvious reason that the statutory Provision (Clause 3 of 2014 Regulations) in case of conflict supersedes the executive instruction (amended Clause 9 of the order dated 17.12.2012). 9.1 Accordingly, it is evident that the amendment to Clause 9 by order dated 17.12.2012 and also the subsequently framed Regulations of 2014 are meant to achieve the solemn object of enhancing the quality of teaching programmes e.g. D.El.Ed meant for preparing teachers for primary and middle school education which is now a fundamental right under Article 21A of the Constitution of India. Thus, the above interpretation of the order dated 17.12.2012 and of the 2014 Regulations and so also the view taken by the coordinate Bench in Smt. Ankita Shukla's case sub-serves the interest of public at large and the constitution mandate of Article 21-A. 9.2 As per the above discussion, this Court need not to go into the implications or consequences of the contradictory stand 7 W.P.No. 8643/2016 taken by the Board in its Short Return.
10. In view of the above, this Court is of the considered view that in the attending facts and circumstances, grant of another opportunity to the petitioner would be dehors the provision of amended Clause 9 of the order dated 17.12.2012. Thus, the only option available with the petitioner is to seek fresh admission in the D.El.Ed 2 Year Course.
11. Accordingly, no case for interference is made out and the present petition stands dismissed.
(Sheel Nagu) (S.K. Awasthi)
Judge Judge
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