Calcutta High Court (Appellete Side)
Soumyashree Banerjee & Ors vs The State Of West Bengal & Ors on 7 March, 2014
Author: Debasish Kargupta
Bench: Debasish Kargupta
1
07.03.2014.
srm
W.P. No. 1 (W) of 2014
With
C.A.N. 873 of 2014
Soumyashree Banerjee & Ors.
Versus
The State of West Bengal & Ors.
Mr. Subrata Mukhopadhyay,
Ms. Malabika Bhoumik,
Mr. Pritam Choudhury
...For the Petitioners.
Mr. Partho Sarathi Sengupta,
Mr. Debdatta Sen,
Mr. Jeban Ballav Panda,
Mr. Rishab Dutta
...For the Respondent‐School.
Mr. Ranajit Chatterjee, Mr. Prasenjit De, Mr. Nilratan Banerjee ...For the Respondent‐Council.
Mr. Rajendra Chaturvedi ...For the State.
This writ application is filed by the petitioners for a direction upon the respondent authorities to allow them to participate in the ensuing Higher Secondary Examination, 2014 to be conducted by the West Bengal Board of Higher Secondary Education.
The petitioners appeared in the test examination of Ballygunge Shiksha Sadan, Kolkata for appearing in the ensuing Higher Secondary Examination, 2014 as regular students. The petitioners failed to obtain pass 2 marks in three subjects in the above test examination and their names were not forwarded for participating in the ensuing Higher Secondary Examination, 2014.
It is submitted by Mr. Subrata Mukhopadhyay, learned Advocate appearing on behalf of the petitioners, that the eligibility criteria to appear in the Higher Secondary Examination by the respondent‐Council is prescribed in Regulation 6 of the West Bengal Council of Higher Secondary Education (Examination) Regulations, 2006 (hereinafter referred to as the said Regulations, 2006). According to Mr. Mukhopadhyay, the petitioners did not fulfil the provisions of clause (c) of Regulation 6 of the said Regulations, 2006. According to Mr. Mukhopadhyaya, the above Regulation is directory and not mandatory in nature. Therefore, relaxation could have been given to the petitioners. According to him, one similarly circumstanced student, namely, Tiyasa Mukherjee, was allowed to participate in the ensuing Higher Secondary Examination, 2014. According to Mr. Mukhopadhyay, terms and conditions of relaxation for enabling unsuccessful candidates for the purpose of allowing them to participate in the ensuing Higher Secondary Examination, 2014 was neither communicated to the respondent‐Council nor to the petitioners. It is submitted by Mr. Mukhopadhyay repeatedly that by virtue of an interim 3 order dated January 2, 2014 the petitioners were allowed to participate in the ensuing Higher Secondary Examination, 2014 subject to the condition that their results will not be published without the leave of the Court. He repeatedly insisted upon for keeping this writ application pending for the purpose of allowing the petitioners to participate in the ensuing Higher Secondary Examination, 2014. According to Mr. Mukhopadhyay, that will not prejudice the interest of any of the parties in this writ application.
It is submitted by Mr. Partho Sarathin Sengupata, learned Senior Advocate appearing on behalf of the respondent‐Council, that all the petitioners failed in three subjects in the text examination as disclosed in the table of the statements made in paragraph 5 of the affidavit‐in‐opposition to this writ application (with the consent of the parties the application for vacating interim order by the respondent‐school is treated as affidavit‐in‐ opposition to this writ application). According to Mr. Sengupta, no similarly circumstanced student was allowed to participate in the ensuing Higher Secondary Examination, 2014 as a regular student of the school under reference. With regard to the case of one Tiyasa Mukherjee, allegedly similarly circumstanced, it is submitted by Mr. Sengupta, that she was not similarly circumstanced. On the basis of a decision of the respondent‐School authority the candidates who had failed in respect of two subjects in the test 4 examination under reference, were allowed to participate in the re‐test examination. Only those students who passed in all the subjects in the re‐ test examination were allowed to participate in the ensuing Higher Secondary Examination, 2014. Producing the answer scripts of the aforesaid Tiyasa Mukherjee in respect of her test examination, it is submitted by Mr. Sengupta, that she had failed in respect of two subjects and as a result she was allowed to participate in the re‐test examination. Ultimately, she passed the re‐test examination and she was allowed to participate in the ensuing Higher Secondary Examination, 2014. Let the photostat copies of the above answer scripts be kept on record. Let it further be recorded that the learned Advocate appearing for the petitioners has inspected the aforesaid answer scripts.
It is further submitted by Mr. Sengupta that assuming that a similarly circumstanced student was allowed to participate in the ensuing Higher Secondary Examination, 2014, that will not confer any enforceable right upon the petitioners on the settled principles of law that the authorities may have acted in an irregular manner in case of some others but that does not confer any legal right on other person to claim a similar benefit. 5
Mr. Sengupta relies upon the decision of M/s. Vishal Properties Pvt. Ltd. vs. State of U.P. & Ors. reported in 2007(7) Supreme 432 in support of his submission with regard to the point of law.
It is submitted by Mr. Ranajit Chatterjee, learned Advocate appearing on behalf of the respondent‐Council, that the term used in different clauses of Regulation 6 of the said Regulations, 2006 is "must". According to the settled principles of law, it purports that the above provisions are mandatory and not directory. It is also submitted by Mr. Chatterjee that once the name of a candidate is forwarded to the respondent‐Council after fulfillment of the conditions prescribed in Regulation 6 of the said Regulations, 2006 on the basis of the norms and procedure adopted by the school authority there is no scope for the respondent‐Council to re‐examine that procedure of selection. According to him, in the instant case, the petitioners did not fulfil the criteria of Regulation 6 of the said Regulations, 2006. Therefore, it is not open to the petitioners to participate in the ensuing Higher Secondary Examination, 2014 to be conducted by the respondent‐ Council.
Mr. Chatterjee relies upon the decisions of Lachmi Narayan vs. Union of India reported in (1976)2 SCC 953 and Sudhangshu Kumar Ghosh vs. 6 State of West Bengal reported in AIR 2010 Cal. 86 in support of his above submissions.
I have heard the learned Counsel appearing for the respective parties at length and I have considered the facts and circumstances involved in this case.
For proper adjudication of the issues involved in this matter the provisions of Regulations 6 and 9 of the said Regulations, 2006 are quoted below:
"6. Eligibility to appear in Higher Secondary Examination as regular candidate.
A candidate must fulfil the following conditions to be eligible for appearing in the Higher Secondary Examination as regular candidate:‐
(a) he must have obtained the registration number from the Council after fulfilling the conditions laid down in the West Bengal Council of Higher Secondary Education (Admission and Allied matters) Regulations, 2006;
(b) he must have passed the Annual Examination at the end of academic sessions of Class‐XI of the Higher Secondary Course;
(c) he must have passed the Test Examination corresponding to the Higher Secondary Examination;
(d) he must have attend not less than seventy per centum of the total classes in Class XI and Class XII separately held during that course prior to commencement of the examination;
Provided that the Council, upon payment of such fee as may be determined by it, may condone any deficiency not exceeding twenty per centum in the attendance on the ground of illness or any other sufficient reason ;
Provided further that a student, whose attendance falls below fifty per centum, shall not be eligible under any circumstances to appear at the examination in that year and shall have to attend Classes in Class XI or Class XII, as the case may be, till he obtains 7 minimum percentage of attendance required for the purpose in respective classes."
"9. Option of changing compulsory elective subject as compulsory optional subject etc. (1) If a candidate fails to obtain minimum pass marks in any compulsory subject excepting Environmental Education for the reasons of deficiency of less than five per centum of full marks, he shall, to make up the deficiency in the compulsory subject, be given credit by transfer of marks from the highest marks, obtained by him in a compulsory subject excepting Environmental Education.
(2) Notwithstanding anything contained in regulations 6, 7 and 8, a regular candidate or continuing candidate or special candidate who cannot be declared passed in the examination by reason of his‐
(a) not appearing in the examination of a compulsory elective subject, or
(b) failure in obtaining the minimum pass marks in a compulsory elective subject, but has obtained the minimum pass marks in the optional elective subject, shall be declared passed by giving him the benefit of interchanging the compulsory elective subject as the optional elective subject and vice versa:
Provided that if a candidate does not, for any reason, intend to take the benefit of interchanging the subjects, he shall, through his institution, intimate his intention as such, and surrender his mark‐ sheet for necessary correction therein, to the Council within thirty days from the date of publication of results."
Admittedly, the petitioners did not fulfil the provisions of clause (c) of Regulation 6 of the said Regulations, 2006. It appears from the table of the statements made in paragraph 5 of the affidavit‐in‐opposition filed by the respondent‐school that all the petitioners were unsuccessful in respect of at least three subjects. After considering the facts and circumstances, I find that 8 they were not eligible to participate in the above examination in non‐ fulfillment of clause (c) of Regulation 6 of the said Regulations, 2006. In the event their cases are considered for relaxation under the provisions of Regulation 9 of the said Regulations, 2006 it will also not help the petitioners to participate in the above examination, provided the above provisions are mandatory in nature.
It is the settled principles of law that when the term "must" is used in a statute then it has to be taken as mandatory. Reference may be made to the decision of Lachmi Narayan (supra) and the relevant portions of the above decision are set out below:
"68. Section 6 (2), as it stood immediately before the impugned notification, requires the State Government to give by notification in the Official Gazette "not less than 3 months' notice" of its intention to add to or omit from or otherwise amend the Second Schedule. The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law‐maker as expressed in the law, itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of "must" instead of "shall", that will itself be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory (Crawford, The Construction of Statutes, pp. 523‐24). Here the language of sub‐section (2) of Section 6 is emphatically prohibitive, it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than three months."9
In view of the above, I have no hesitation to hold that the above provisions are mandatory in nature. Since the petitioners did not fulfil the mandatory eligibility criteria to participate in the ensuing Higher Secondary Examination, 2014 no direction can be given to the respondent authorities to allow them to participate in the ensuing Higher Secondary Examination, 2014.
With the prayer of the petitioners to keep this writ application pending and to allow the petitioners to participate in the ensuing Higher Secondary Examination, 2014 in terms of the interim order dated January 2, 2014, I find at the end of the day that the matter is ready for hearing treating the application for vacating interim order filed by the respondent‐school as their opposition and allowing the petitioners to file reply in the matter, there is no scope of keeping the matter pending after hearing at length.
The settled principles of law as decided in the matter of CBSE & Anr. vs. P. Sunil Kumar reported in 1998 (5) SCC 377 and the relevant portions of the decision are quoted below:
"We are conscious of the fact that our order setting the impugned directions of the High Court would cause injustice to these students. But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel to Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of students. In 10 view of the aforesaid premises, we set aside the impugned judgement of the Division Bench of the Kerala High Court as well as the interim orders issued by the single judge in several petitions out of which the writ appeals arose and the writ petitioners filed by the respondents stands dismissed. These are appeals are allowed but in the circumstances there will (be) no order as to costs."
So far as the question of validity of the decision of the respondent‐ school to hold re‐test examination for the students who had failed in two subjects in the test examination, I find that it is the settled principles of law that the norms and procedure for holding the re‐test examination is vested to the school authority concerned and the respondent‐Council cannot interfere with the decision of the respondent‐school. Reference may be made to the decision of Ms. Debapriya Ghosh vs. State of West Bengal and Others reported in AIR 2005 Cal.76 and the relevant portions of the above decision are quoted below:
"It appears from Section 21 of the West Bengal Council of Higher Secondary Education Act, 1971 being source of power, that the Council respondent has no jurisdiction and/or authority to give any direction aiming at to interfere with the independent functioning of the institution. Each and every institution ought to have and/or might have laid down its own norms and terms and conditions for admitting students and declaring a student to be successful in class examination as well as for taking test examination. Having agreed to the terms and conditions the guardians of the students get admission of their wards. I do not see any irrationality in laying down different standards and norms by different schools according to their own policy and wisdom having regard to their suitability. The internal arrangement of school concerned as urged appropriately by learned Government Pleader should not be interferred with by the 11 Council or for that matter by the Court in any manner, even by giving direction or laying down any norms. It is true if there is any discrimination in the assessment and evaluation of the performance of a particular student on the basis of their own norms such aggrieved students may approach the appropriate forum for getting redressal individually. Mr. Chatterjee has rightly drawn my attention to the Supreme Court decision reported in 1986 (Supp) SCC 20: (AIR 1986 SC 1323) (paragraph 50) wherein it is observed amongst other that possibility of abuse of power or arbitrary exercise of power cannot invalidate the statute conferring the power of the power, which has been conferred by it. Similarly as because in one or two isolated case (s) the said clause 9 (xxv)(c) is proved to have worked injustice and ineffective to one or more candidates who though failed in test examination, came out successful on the strength of Courts order, cannot be a factor to hold the same being irrational and discriminatory. This restriction in my opinion, is reasonable aiming at to classify between bad student and good student and aiming at to achieve the object of the said Act and Regulation framed thereunder."
So far as the case of Tiyasa Mukherjee is concerned, after examining her answer scripts of test examination, I find that she failed in two subjects and she was successful in three subjects. Therefore, in the event a decision was taken to hold re‐test examination for the candidates who had failed in two subjects, in that event there is no impropriety of the above decision and the petitioners are not similarly circumstanced with the above student. That apart, in the event any wrong was committed in allowing other students (who are not parties to this proceeding) to participate in the ensuing examination that does not confer any legal right upon the petitioners from a Court of writ jurisdiction to participate in the ensuing Higher Secondary 12 Examination violating the statutory provision. Reference may be made to the decision of M/s. Vishal Properties Pvt. Ltd. (supra) and the relevant portions of the above decision are set out below:
"12. Even otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. Therefore, we are not bound to direct any Authority to repeat the wrong action done by it earlier. In Sushanta Tagore & Ors. vs. Union of India & Ors., (2005(3) SCC 16), this Court rejected such a contention as sought to be advanced in the present case by observing:‐ "Only because some advantages would ensure to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments, if any, may be removed in accordance with law. It is trite law that there is no equity in illegality.""
In view of the discussions and observations made hereinabove, this writ application is dismissed.
There will be, however, no order as to costs.
In view of the order dated February 24, 2014 to treat the application for vacating the interim order filed by the respondent‐School as affidavit‐in‐ opposition to the writ application, no further order need to be passed in respect of the above application for its disposal.
( Debasish Kar Gupta, J. ) 13 Later:
After delivery of the judgment, a prayer is made for staying the operation of the judgment. I am afraid, in an order of dismissal of a writ application cannot be stayed.
Such prayer is rejected.
Photostat plain copy of this order duly countersigned by the Assistant Registrar (Court) be supplied to the parties on usual undertakings.
( Debasish Kar Gupta, J. )