Himachal Pradesh High Court
Miss Pooja Uppal And Ors. vs Himachal Pradesh Board Of School ... on 9 September, 1988
Equivalent citations: AIR1989HP72
JUDGMENT V.K. Mehrotra, J.
1. These three writ petitions under Article 226 of the Constitution relate to the grievance of some students who appeared in the matriculation examination conducted by the Himachal Pradesh Board of School Education in the month of March, 1988. The petitions were clubbed together, for the purpose of hearing, at the request made by the learned counsel for the petitioners in these cases. When the petitions were presented in this Court, the respondent Board was called upon to put in its reply. It did so in each of the petitions. The petitioners have also filed their affidavits-in-rejoinder in each of them. We may, however, notice that the facts on the basis of which the principal arguments have been addressed before us in C.W.P. No. 355 of 1988 were brought on the record of that petition through a Civil Misc. Petition (978 of 1988). The version of the respondent-Board was placed before this Court in that petition in its reply filed in this Civil Misc. Petition. The rejoinder to this reply is also to be found in that Civil Misc. Petition.
2. The petitioners in C.W.P. No. 355 of 1988 are 5 in number. On the basis of the result of these petitioners, each one of them is entitled to appear at the compartment examination which the respondent-Board is likely to hold later this month. There are 6 petitioners in C.W.P. No. 400 of 1988. Out of them, according to the statement made by Mr. R. K. Gautam, their learned counsel, 4 namely, Yikrant Sharma, Ramesh Kumar Verma, Miss Vijay Laxmi and Miss Rekha Singhi are entitled to appear at the compartment examination. The remaining two petitioners Virender Singh and Mahesh Kumar Garg have been declared failed. In C, W.P. No. 402 of 1988, the only petitioner is Pankaj Ahluwalia. He too is entitled to appear at the compartment examination aforesaid.
3. The main submission which has been made on behalf of the petitioner in this Court is that the respondent-Board has acted arbitrarily and had discriminated against the petitioners by not declaring each one of them to have passed the matriculation examination by award of 13 special grace marks. The grievance that in respect of a large number of students, who had appeared at the same matriculation examination as private candidates, special grace marks to an extent of 13 marks each were awarded by the respondent-Board and, consequentially, those students were declared passed. We may add that this plea was not taken by Pankaj Ahluwalia in his writ petition but we will-as prayed by Mr. M. G. Chitkara, appearing for him in this Court, take this submission also into account in coming to a conclusion in the writ petition filed by Pankaj Ahluwalia as well.
4. The respondent-Board is constituted under the provisions of Himachal Pradesh Board of School Education Act, 1968 Regulations have been framed in exercise of powers under that Act. These are the Himachal Pradesh Board of School Education Regulations, 1970. The matter of examination is also provided for in these regulations. Regulation 9, which deals with, the question of qualifying for matriculation examination (as printed at page 382 of the Himachal Pradesh Code (Vol. II) corrected up to 31st Mar. 1976) is in the following terms :
"In order to qualify for Matriculation examination, a candidate must pass in five subjects: English, Mathematics and Modern Indian Language; and any two out of the remaining subjects. The minimum number of marks required to pass shall be as under:--
(a) For all subjects excluding science subjects.
35 per cent in each, subject
(b) For Science subjects including Domestic Economy (1) 35 per cent in written papers;
(2) 25 per cent in practical, and (3) 35 per cent in the aggregate of written and practical,
(c) For Music (Additional optional sub-subject) 35 per cent both in theory and practical taken together:
Provided that (i) if a candidate fails in one subject or more and the total deficiency is not more than one per cent of the total aggregate marks he shall be given those marks to make up the deficiency without regard to the number of subjects in which it is required, in order to be declared, to have passed the examination; and (ii) if a candidate can pass in the sixth subject also within the limits of grace marks allowed in (i) he too shall be given the required number of marks, A candidate appearing: in--
(i) additional subjects.
(ii) English only,
(iii) qualifying subjects, shall also be eligible-for the above concession, but the limit of these grace marks shall be up to 1 per cent of the total aggregate marks of the subject/s in which he appears."
It has been stated before us that apart from some changes in the subjects, the regulation remains the same in its essential requirement so far as the minimum marks required to pass the examination and the grant of grace marks are concerned.
5. S/Shri S. S. Kanwar, R. K. Gautam and M. G. Chitkara who have appeared for the petitioners jn the three petitions respectively, and Shri Gopal Sharma, who appeared for the respondent-Board, have stated that in respect of the grant of grace marks, the only regulation which they can bring to the notice of the Court is Regulation 9. However, they have also drawn our attention to page 319 of the Code aforesaid where it deals with the moderation of results. We may read the relevant part of paragraph (III) relating to moderation printed at that page :
"1. Before declaration, the results of an examination together with a statement of percentage of passes in the whole examination and in each subject for the current and the four preceding years, shall be submitted to the Chairman.
2. The Chairman shall order publication of the result unless, on scrutiny of the figures submitted, he considers that there has been a distinct change of standard on the whole examination or in a particular subject and in that case he may refer the matter to the Examiners concerned for a report on the apparent change of standard, and may suggest a specific modification of the results or may take any other action as considered necessary.
3........."
6. The petitioners came to this Court at a stage when they discovered that in respect of a large number of candidates, who appeared as private candidates at the matriculation examination held in March, 1988, the respondent-Board had, in addition to 10 marks which it could award as grace marks under Regulation 9, awarded 13 additional marks by way of extra grace marks which resulted in those candidates having been declared as passed.
7. In respect of the grievance of the: petitioners in this regard, the Board has disclosed its case in paragraph 2 of the reply filed by it in C.M.P. No. 978 of 1988 (C.W.P. No. 355 of 1988). The learned counsel for the respondent-Board has adopted the same reply for the purposes of all these petitions. Paragraph 2 reads thus:
"Para 2 of the C.M.P. is admitted to the extent that 13 special grace marks to all the candidates who have appeared under Old Regulation in addition to the normal grace marks were awarded in the Matriculation examination held in March, 1988. All the students mentioned in Para 2 of the C.M.P. appeared under Old Regulation, whereas all the petitioners appeared under New Regulation. No special grace marks have been awarded to the candidates who appeared under New Regulation in the Matriculation examination held in March, 1988. It may be pertinent to mention here that the general pass percentage of candidates appearing under Old Regulation was about 11% only and the candidates appearing under Old Regulation were given last chance to qualify the examination. They were not to be placed under compartment as per the recommendation of the committee comprising of five officers of H.P. Board of School Education. The Committee thus recommended to award 10 to 15 special grace marks to all the candidates appearing under Old Regulation. The Chairman finally decided to award 13 special grace marks in addition to general grace marks to the candidates appearing under the Old Regulation as a special case, since, the question papers and syllabus were entirely different than that of candidates appearing under New Regulation."
8. The grant of the extra grace marks, according to the learned counsel for the petitioner, cannot be justified under Regulation 9. On its language, Regulation 9 does not appear to cover the grant of extra grace marks. However, we are not inclined to enter into any further discussion about the ambit of powers of the respondent-Board for the grant of grace marks, in addition to those provided for in Regulation 9, for the purpose of disposal of these petitions. We may, without expressing a final opinion, assume that Regulation 9 did not permit the award of extra grace marks to the private candidates to whom it is has been awarded in respect of the examination held in March, 1988.
9. What, however, deserves notice is that the main thrust of the submission made by the learned counsel for the petitioners has been that the Board should be directed to award extra grace marks to the petitioners as well, inasmuch as, such marks have been awarded to some private candidates. It has also been urged that in not awarding extra grace marks to the petitioners, the respondent-Board has practised hostile discrimination against them. It has also been contended that the decision to deprive the petitioners of the extra grace marks is also arbitrary in character.
10. As mentioned, by us earlier, even assuming that Regulation 9 did not enable the respondent-Board to award extra grace marks to the private students, the question is whether in exercise of the equitable and extraordinary jurisdiction of this Court under Article 226 of the Constitution, a direction should issue to the respondent-Board to award extra grace marks to the petitioners. Allied to it is the question whether the decision of the respondent-Board in awarding extra grace marks to some private students should be quashed by us.
11. From the assertions made in para 2 in its reply in C.M.P. No. 978 of 1988, it is clear that the respondent-Board decided to give extra grace marks, which have been described as special grace marks by it, on three distinct grounds. The first of these grounds put forward is that all those private candidates were appearing under the Old Regulation under which no further examination is to be held by the respondent-Board The candidates appearing under the Old Regulation were, thus, having the last chance in the examination held in March, 1988 to qualify for the matriculation examination. The second reason was that it was discovered that the general pass percentage of the candidates who had appeared for the last time under the old regulation was very low, being about 11% only. The third reason was that these candidates would not have a chance for appearing at any compartment examination for no such examination for them was to be held. The matter was, therefore, entrusted to a Committee of 5 officers of the respondent-Board which recommended that 10 to 15 special grace marks be awarded to all the candidates appearing under the old regulation in that situation. When the matter went before the Chairman of the Board he decided that 13 extra grace marks be awarded to the candidates who were appearing for the last time under the old regulation as special grace marks in addition to the general grace marks to which they are entitled like all other candidates who had appeared in the examination in March, 1988. Since some doubt was cast about the accuracy of the statement made in this para on behalf of the petitioners, we asked the learned counsel for the respondent-Board to produce before us the original file in which the decision aforesaid of the Board was contained. Shri Gopal Sharma produced that file. We have examined it and we find that what has been stated in paragraph 2 of the reply by the respondent-Board in C.M.P. No. 978 of 1988 is completely borne out by what is contained in that reply.
12. The picture that emerges is that a number of candidates who appeared in the matriculation examination conducted by the respondent-Board in the month of March, 1988 for the last time under the old regulation had failed to secure a pass in the examination. The percentage of success was as low as 11%. Since no further examination, either in its entirety or by way of compartment was to be held by, the Board under the old regulation after March, 1988 examination, it was felt equitable to allow special grace marks to the candidates of the category of those who had taken the examination under the old regulation. A Committee, constituted for the purpose, had recommended the award of special grace marks between 10 to 15. The Chairman of the Board decided that a figure representing the mean, namely, 13 (in other words, making the figure of 121/2 into the whole number of 13) be awarded to these students.
13. In view of the fact that the candidates who had appeared for the last time under the old regulation were not to have any further opportunity of appearing under the old regulation and having regard to the very low pass percentage of the students, the decision aforesaid cannot be said to be arbitrary in the sense that no reasonable person or authority would take it in the circumstances of the case. We are, therefore, not inclined to take the view that the decision deserves to be set aside by us in our extraordinary jurisdiction under Article 226 of the Constitution.
14. There is another way of looking at the problem. The basic prayer which has been made on behalf of the petitioners is that the respondent-Board should be directed to award special grace marks to the petitioners as well. On the own showing of the learned counsel for the petitioners, Regulation 9 does, not permit award of special grace marks, over and above the percentage contemplated by Regulation 9. Merely because some error has been made by the respondent-Board in respect of a particular category of students, in the peculiar circumstances under which those candidates were placed, would not justify the issuance of a direction by this Court that a similar mistake should be committed by the respondent-Board in respect of students like the petitioners most of whom, as seen earlier, are to appear at the compartment examination to be held in this month.
15. Shri S. S. Kanwar emphasised that there was no rationale for distinguishing between the cases of the present, petitioners and those of the private candidates to whom special grace marks have been awarded. He urged with some emphasis that both the categories were similarly situate because they appeared in the same examination, the -percentage of marks for passing the examination was the same namely 35%, the rules for conducting the examination and for moderation of the marks were the same in both cases. It is not necessary for us to deal with these submissions separately in view of what we have said earlier.
16. Another part of the submission of Shri Kanwar was that no reasons were forthcoming for award of 13 marks as special grace marks. The decision to award those marks was thus arbitrary. We have indicated earlier that the committee had recommended the award of 10 to 15 marks and it was the Chairman who decided upon the award of 13 marks in the circumstances noticed by us earlier.
17. We may also notice the submission of Shri Kanwar that the non-consideration of the cases of students like the petitioners, who had appeared under the new regulation, for grant of any special grace marks brought in an element of discrimination against them. We are unable to subscribe to this reasoning in view of the peculiar circumstances in which the respondent-Board took the decision for award of the special grace marks to the private candidates who had appeared for the, last time, under the old regulation.
18. The submissions which Shri R. K. Gautam, on behalf of the petitioners in C.W.P. No. 400 of 1988, made have been those which have been noticed by us in the earlier part of the judgment. An additional factor which Shri Gautam brought to our notice is that most of the students had failed in mathematics, namely, one subject which entitled them for the grant of special grace marks. It is difficult to accept this submission for the simple reason that the grant of grace marks being regulated by the provision contained in Regulation 9, according to Shri Gautam himself and, additionally under the provisions for moderation of result (provided for at page 319 of the Code, it is idle to contend that the respondent-Board should be directed by this Court to consider gram of special grace marks to these petitioners even if such grant is not permissible under the Regulation. In any case, we may mention once again that the error, if any, committed by the Board in transgressing its powers would be perpetuated by asking it to commit a similar mistake in respect of students who are to appear in the compartment examination after a few days or by directing it to give benefit thereof to such of them who have not qualified to be declared passed under the regulation applicable to them.
19. Shri M. G. Chitkara, appearing for Pankaj AhluwaJia in C. W.P. No. 402 of 1988, urged, in addition to what has been considered by us earlier, that the marks which had been obtained by Pankaj in the internal assessment should have been added to the marks which he obtained in mathematics. He pointed out that in the mathematics first paper, Pankaj had obtained 23 marks while in the second paper he had obtained 3 marks, The respondent-Board has brought out in its reply that the marks obtained in the internal assessment are only to be added to the marks obtained by a candidate who has obtained at least 35% marks in the external examination.
Admittedly, petitioner Pankaj had not obtained 35% marks in the external examination for he had only obtained 26 marks out of 120 marks in the two papers of mathematics.
20. Even if we were to take the view that Pankaj was entitled to the addition of the marks obtained by him in his internal assessment, it would not help him. He can still not be declared to have passed the examination because one of the requirements is that he should have obtained at least 35% marks in external examination. This we find from the relevant regulation at pages 380/381 of the Code to which we have made a reference earlier. In its material part the regulation says that:
"The internal assessment marks be 20 per cent. Out of 20 per cent, 15 per cent shall be based on House Test and 5 per cent on the general behaviour of the students. In order to pass the Examination the candidate shall obtain at least 35 per cent in external examination and 35 per cent in aggregate. The internal marks sent by the schools shall be accepted and no disparity shall be worked out. It is not necessary to pass in the internal examination."
21. The grievance made on behalf of petitioner Pankaj also is that even under the existing rules he was entitled to the grant of 10 marks as grace marks under Regulation 9. The learned counsel for the respondent-Board disputes this plea. However, even if we assume' that Pankaj was entitled to these 10 marks, his case is not improved in any manner. It has been clearly stated by Shri Chitkara that even if these 10 marks were awarded to petitioner Pankaj, by way of grace marks, the total of 36 marks which he would thus obtain will fall short of 42 marks which he should obtain to make up 35% marks required for declaring petitioner Pankaj as having passed the examination.
22. The last submission of Shri Chitkara was that in question No. 2 (vii), petitioner Pankaj has been awarded marks but they has not been added to the total. We permitted Shri Chitkara to look into the answer book which was available, in terms of our earlier direction, for the perusal of the Court. After going through the answer book, Shri Chitkara stated that the petitioner was carrying an incorrect impression in this respect and, in reality 11/2 marks have actually been added to his total.
23. One of the submissions which was highlighted on behalf of petitioner Pankaj was that in regard to questions No. 1(ii)(iii)(vi)(vii)(viii)(ix), the answers which petitioner Pankaj had given were correct but no marks had been awarded for them. The stand of the respondent-Board in regard to it was that the questions were examined and duly marked. The petitioner had, according to the respondent-Board, failed to secure any marks in these questions as the answers given were not correct. Shri Chitkara submits that the stand that the answers given by petitioner Pankaj to these questions were wrong was not correct. We did not permit him to pursue the matter because that would have taken us to the zone of re-evaluation. The examiner having taken the view that the answers given by Pankaj to these questions were not correct, it is not possible for this Court to sit in judgment over it or permit, the petitioner to convince the Court that, in fact, the answers were correct. The regulations do not permit re-evaluation of the answers.
24. In conclusion, we are of the opinion that the petitioners are not entitled to any relief in these petitions. We dismiss them. However, we make the parties to bear their own costs.