Delhi High Court
Manish Sood vs Lt. Governor And Ors. on 14 March, 1995
Equivalent citations: 58(1995)DLT328
Author: Cyriac Joseph
Bench: D.P. Wadhwa, Cyriac Joseph
JUDGMENT Cyriac Joseph, J.
(1) The petitioner in this civil writ petition is a minor and he is represented through his mother and natural guardian.
(2) The respondents are: (1) Lt. Governor of Delhi, (2) The Director of Education, National Capital Territory of Delhi, (3) The Principal, Delhi Public School, Mathura Road, New Delhi, and (4) The Delhi Public School through its Manager, Mathura Road, New Delhi.
(3) According to the averments in the petition, the petitioner is a student of the Delhi Public School, Mathura Road, New Delhi since 1985. He appeared in Class Xi examination in March 1994 in the Commerce (without mathematics) stream. When the results were declared the petitioner was declared to have failed in English and he was detained. The progress report shows that the petitioner got only 20% marks in English. Taking all the subjects together the aggregate marks obtained by the petitioner is 32%. When it was known that the petitioner had been detained, the petitioner's mother who is also a member of the staff of the School, made a representation to the respondent No. 3 Principal, on 7th April, 1994 requesting that the petitioner may be either promoted or given compartmental test in English. When there was no reply from the respondent No. 3, the petitioners mother submitted another representation dated 12th May, 1994 to the respondent No. 3 requesting to promote the petitioner to Class XII. By another letter dated 28th July 1994 written on behalf of the petitioner, respondent No. 3 was requested to supply a copy of the relevant rules. The case of another student by name Shelka Dutt was also pointed out in support of the petitioner's right to appear at the compartmental test. Aggrieved by the complete silence on the part of respondent No. 3, the petitioner's mother wrote a letter dated 11th August, 1994 to respondent No. 4, Manager of the Delhi Public School (The Chairman Dps Society, New Delhi) and failed to reply to the representations / letters sent on behalf of the petitioner, the petitioner's mother sent a representation dated 17th August, 1994 to respondent No. 2, Director of Education, requesting him to direct the School to promote the petitioner to Class XII. On 18th August 1994 the petitioner also issued a legal notice to respondent No. 3 to compel him to include the name of the petitioner in the nominal rolls of Class XII. However there was no favorable response to the letters/representations/legal notice. In the meanwhile the petitioner received a letter dated 24th August, 1994 from the Vice-Principal of the School pointing out that the petitioner had not been attending School since July 4,1994 and requiring the parent to see the Principal at the earliest so that the petitioner's name was not struck off the rolls. In reply to the said letter of the Vice-Principal, the petitioner's mother sent a reply on 26th August 1994 pointing out that the petitioner's name did not figure in any of the nominal rolls of Class Xi or Class Xii in 1994-95. It is also alleged in the civil writ petition that after repeated requests made on behalf of the petitioner, the third respondent agreed to allow the petitioner to take a re-test subject to the condition that he undertook to apply for transfer certificate. It is further alleged that the above condition stipulated by respondent No. 3 was brought to the notice of respondent No. 2 by the petitioner's mother through a letter dated 30th August, 1994, a copy of which is annexed to the writ petition as Annexure-Pl 1. It is also stated that respondent No. 3 has since refused to allow the petitioner to appear in a retest. It is in these circumstances that the petitioner filed this civil writ petition praying for the following reliefs: (a) declare that the refusal of respondent No. 3 to allow the petitioner a chance to appear in the compartmental test for Class Xi is violative of his rights under Article 14 and illegal, and (b) pass an appropriate writ, order or direction in the nature of a writ of mandamus commanding the Respondent No. 3, to hold a compartmental test for the benefit of the petitioner within a reasonable time, or (c) pass an appropriate writ, order or direction to the Respondent No. 2 to issue suitable directions to Respondent No. 3, to hold compartmental test in English for the benefit of the petitioner. (d) pass an appropriate writ, order or directions quashing the letters dated 17.8.1994 and 26.8.1994 and consequently suitably alter his attendance record."
(4) The main contention of the petitioner is that under Clause 35 of the Instructions issued by the Directorate of Education under Rule 41 of the Delhi School Education Rules, 1973 the petitioner was eligible to appear at the compartmental test. Rule 41 of the Delhi School Education Rules, 1973 says that the Administrator shall on the advice of the Advisory Board issue detailed instructions regarding assessment, evaluation and promotion of students from one class to another. According to the petitioner the Directorate of Education has circulated the instructions issued under Rule 41. Clause 32 of the said Instructions deals with promotion rules for Class Iv to Ix and XI. According to Clause 32, in order to be declared as 'PASSED' at the end of the session of a class, a student must secure atleast 33% marks in each of the subjects offered by him during the session and also in case of subjects involving the practical work, the student must secure atleast 25% in the practical portion and 33% in the theory and aggregate. In computing 33% of the marks, the benefit of a fraction will go to the credit of the student and such a student shall be declared as Passed and he/she shall be promoted to the next higher class. Clause 35 of the said Instructions deals with compartmental examination. It reads thus: "A student who is not eligible to be declared as 'PASSED' or 'PROMOTED' can be declared as eligible for appearing in the 'Compartmental Examination' Provided he/she fails only in one or two subjects and in the subject (s) he/she secures at least 25% marks. Such a student shall be eligible to appear in the subject (s) in a subsequent examination to be held in the month of July before the opening of schools after summer vacation and to be known as 'Compartmental Examination'. If the student secures in the subject (s) in which he/she has taken the compartmental examination at least 33% marks (Disregarding the terminal test marks) he/she shall be declared as 'Promoted' in compartmental examination and promoted to the next higher class." According to the petitioner Clause 35 has been amended in 1988. In support of his contention the petitioner has annexed to the writ petition a circular dated 28th March, 1988 of the Additional Director of Education (Schools). The effect of the said amendment is that a student who is not eligible to be declared passed or promoted can be declared eligible for appearing at the compartmental examination provided he/she fails only in one or two subjects, provided he/she gets minimum of 15% (wrongly printed as 16%, according to the Counsel) marks in those subjects. According to the petitioner he has failed only in one subject i.e. English in which he has got 20% marks and, therefore, in view of clause 35 of the above mentioned Instructions he was eligible to appear at the compartmental examination. It is contended by the petitioner that denial of an opportunity to him to appear at the compartmental examination in English was in violation of the above mentioned instructions.
(5) It is also alleged by the petitioner that he was subjected to hostile discrimination by the third respondent inasmuch as another similarly placed student by name Ms. Shelka Dutt was given a retest and was promoted to Class 12.
(6) It is also contended by the petitioner that the actions of respondent No. 3 were clearly malafide and dishonest. According to the petitioner such a discriminatory and hostile treatment was meted out to the petitioner due to the fact that his mother is a founder member of the recently registered Delhi Public School Employees Association. It is alleged that apparently irked by the involvement of the petitioner's mother in the formation of the above mentioned Association, respondent No. 3 deliberately ensured that the petitioner was meted out the harsh treatment to teach his mother a lesson.
(7) In the reply to the show cause notice filed on behalf of the respondents 3 and 4, it is contended that no writ petition can lie against respondents 3 and 4. It is also stated that the petitioner had been doing very poorly in the various classes and had never secured on an aggregate more than 40% marks The decision to detain the petitioner was not taken by the Principal as such, but was taken in the meeting of the Promotion Committee consisting of class representatives, class teachers, Vice-Principal and Principal on 28th March, 1994. The case of the petitioner for promotion to the next class was considered along with other students. The prescribed pass marks for promotion at the Delhi Public School, Mathura Road had been aggregate of 40%. However, during the session 1993-94 the same was brought down to 33%. The petitioner could not attain even this low qualifying mark. It was even otherwise in the interest of the child to repeat the class in view of his poor performance. It is further contended that the rules contained in the hand book "Instructions regarding assessment evaluation and promotion of students" published by the Directorate of Education, Delhi have been strictly adhered to and followed. It is also pointed out in the reply of respondents 3 and 4 that the final assessment percentage of the petitioner for the academic year 1993-94 for Class-XI was a decimal 31.2%. As per Rule 32 of the above mentioned Instructions, he could not be declared as passed as he did not secure the requisite 33% aggregate marks and as well as 25% marks in the compulsory subject English in which he failed. In English the petitioner has secured only 20% marks while his aggregate was only 31.2%. The petitioner could not achieve the qualifying marks even after award of the prescribed maximum grace marks as per Rule 34. It is further stated that the petitioner could not be given a retest or compartment as per Rule 35 because he had failed to secure the prescribed minimum of 25% in the subject in which he failed. The petitioner was not eligible for promotion to the next class with compartment. As such the Promotion Committee took the decision to detain him in the same class. In the reply of respondents 3 and 4, an attempt is made to demonstrate that the petitioner did not do well in the examination in the past also and that in spite of repeated requests and reminders no improvement was shown. In the reply of respondents 3 and 4 it is also contended that the case of Ms. Shelka Dutt was not similar to that of the petitioner. She had secured an aggregate of 35.8% and was entitled to take the compartmental examination. Ms. Shelka Dutt had always performed much superior to the petitioner and she brought credit to the School by her impressive performance at the Inter School Cultural activities. Right from the Junior Classes, she had performed well academically and in co-curricular activities. Her score in Classes Iii, Iv, V was 86%, 82% and 81.2%. Due to very disturbed conditions at home, and preoccupation with co-curricular activities, her marks decreased but in Class X she had secured 68.2%. It is further averred that her retest was justified on the basis of the prescribed instructions. The action of the Vice- Principal in writing the letter dated 24th August, 1994 (Annexure-P8) is also defended in the reply of respondents 3 and 4. It is asserted that the name of the petitioner did figure in the nominal rolls of Class Xi and the letter was written since the petitioner was absent from the commencement of the session. It is also stated that even though the name of the petitioner was liable to be struck off from the rolls on account of his continued absence, it was not done on the request of the petitioner's mother. It is also pointed out in the reply of respondents 3 and 4 that a good number of students including children of the staff have been detained in accordance with the Rules and that students who had even performed marginally better than the petitioner have also been detained. The allegation that the Principal agreed to allow the petitioner to appear in the compartmental examination subject to the condition that the petitioner would seek transfer from the School is categorically denied in the reply of respondents 3 and 4. They have also denied the allegation regarding discrimination or victimisation of the petitioner on account of the petitioner's mother being a founder member of the Delhi. Public School Employees Association.
(8) In an affidavit dated 27th October, 1994 filed by respondent No. 3 (Principal), it is stated that the examinations for Class Xi were held from 9th March, 1994 to 18th March, 1994 and the results were declared on 28th March, 1994. The parents of all the students including the parents of the petitioner were duly informed about the result of their child. The session for Class Xii commenced on 4th April, 1994. The compartmental examination for the school was held in July 1994. The petitioner filed the writ petition only in September 1994. Even if a retest is held for the petitioner and even if he passes in the test making him eligible for promotion to Class Xii, the petitioner cannot have the minimum required attendance in Class XII. It is specifically stated that the Principal of the School has to make the declaration that the student has attended the entire academic session in accordance with the rule and that such a declaration cannot be given by the Principal in the case of the petitioner. It is pointed out that the relief in the present case is difficult to be implemented because the petitioner does not fulfill the minimum attendance required and he has not attended the course in Class Xii and it will affect the academic standard of the school, (9) In the affidavit filed by respondent No. 3 on 27th October, 1994 it is also stated that the authority had taken a decision that the student who wants to appear in the compartmental examination has to get at least 33% marks in the aggregate including the failing subject. Such a decision was taken in the interest of the School and was for attaining higher standard of education. Along with the affidavit a document purported to be copy of the guidelines for promotion of students at Delhi Public Schools issued by the Secretary of the Delhi Public School Society on 1st March 1994 is produced. According to the said guidelines in case a student fails to obtain minimum pass marks in any subjects, he may be retested in that subject provided he obtains 33% marks in the aggregate of all the subjects (including the subjects in which he has failed).
(10) The petitioner has no case that according to the Instructions issued under Rule 41 of the Delhi School Education Rules, he was eligible to be declared as passed and to be promoted to Class XII. His entire case is based on his eligibility to appear at a compartmental examination in the failed subject of English in which he had got only 20% marks. In the event of getting an opportunity to appear in the compartmental examination, he expected to obtain sufficient marks to make him eligible for promotion. According to the petitioner, under Clause 35 of the "Instructions regarding Assessment, Evaluation and Promotion of Students" issued by the Directorate of Education, as amended in 1988 as per the circular dated 28th March, 1988 of the Additional Director of Education'(Schools), a student who fails only in one or two subjects is eligible for appearing at the compartmental examination provided he/she gets minimum of 15% marks in those subjects. Admittedly the petitioner had failed only in one subject (English) and he had obtained 20% marks. Hence according to the petitioner he was eligible for appearing at a compartmental examination and the denial of such an opportunity was in violation of the above mentioned Instructions issued by the Directorate of Education. This contention of the petitioner appears to be well-founded. Copy of circular dated 28th March, 1988 of the Additional Director of Education (Schools) was produced with the writ petition. Either in the reply filed by the respondents 3 and 4 or otherwise, the genuineness of the document was not disputed. Learned Counsel for respondents 3 and 4 could not assert that Clause 35 was not amended as shown in the said circular. Hence the Court has to proceed on the basis that Clause 35 of the Instructions stood amended as evidenced by the said circular dated 28th March, 1988. We find that the petitioner was eligible for appearing at the compartmental examination in view of the amended Clause 35. The refusal of respondents 3 and 4 to allow the petitioner to appear at the compartmental examination was in violation of the Instructions. In the reply of respondents 3 and 4, the reason stated for such refusal is that the petitioner did not secure the minimum of 25% marks in the subject in which he failed. In support of their stand reference is made to clause 35. Obviously in the reply of respondents 3 and 4 the amendment effected to clause 35 in 1988 has been ignored. By the said amendment, the minimum mark was as lowered from 25% to 15%. Hence the reason stated in the reply of the respondents 3 and 4 is not valid.
(11) Though not specifically stated in the reply, another contention was raised by the learned Counsel for respondents 3 and 4 on the basis of the affidavit of respondent 3 filed on 27th October, 1994. According to the learned Counsel, since the petitioner did not have the minimum aggregate marks of 33%, he was not eligible to appear for the compartmental examination. But no such stipulation is made in clause 35 for the purpose of eligibility for appearing in compartmental test. The minimum aggregate of 33% mentioned in Rule 32,34 and 35 is for the purpose of eligibility to be declared as passed and to be promoted. Hence the contention of the learned Counsel is not supported by the relevant provisions in the Instructions. However, the learned Counsel contended that the School authorities had taken a decision that the student who wants to appear in the compartmental examination has to get at least 33% marks in the aggregate including the failing subjects. Learned Counsel invited our attention to the averment to that effect in the last paragraph of the affidavit dated 27th October, 1994 of the Principal and also to the Guidelines issued by the Secretary, Dps Society which is produced along with the said affidavit. Strongly there is no reference in the affidavit to the said document. Hence it is not a properly produced document which can be relied on. It is also significant that the defense taken by respondents 3 and 4 in the reply affidavit dated 4th October 1994 was quite different. The said reply did not refer to this document or any guidelines. The document is dated 1st March, 1994. It was produced after the arguments commenced on 25th October, 1994. The petitioner did not get sufficient opportunity to verify and submit on the genuineness or applicability of the said guidelines issued by the Secretary, D.P.S. Society. The learned Counsel for the petitioner even alleged that the document might have been created to defeat the case of the petitioner. In these circumstances, we don't consider it proper to uphold the decision of respondents 3 and 4 not to allow the petitioner to appear at the compartmental examination, on the basis of the above mentioned document. A further question also may arise as to whether the Secretary of the D.P.S. Society is competent to issue guidelines contrary to and inconsistent with the instructions issued by the Directorate of Education. It is unnecessary for us to consider that aspect in this case since we are not inclined to rely on the said document for the purpose of this case. It is clear that under Clause 35 of the Instructions issued by the Directorate of Education, the petitioner was eligible for appearing at the compartmental examination and that respondents 3 and 4 violated the said instructions in the petitioner's case.
(11) However we are not impressed by the argument that the petitioner was subjected to hostile discrimination. The only basis for the allegation is the case of one Ms. Shelka Dutt who was given the opportunity to appear for the compartmental test. The reply of respondents 3 and 4 contains details to indicate that the circumstances and factors were different in the case of Ms. Shelka Dutt. The petitioner has not stated anywhere that Ms. Shelka Dutt had got only less 25% marks in the failed subjects and less than 33% aggregate. According to the respondents, she was eligible for appearing in the compartmental examination as per the norms followed by them which are more rigorous than the norms prescribed by the Directorate of Education. Hence it cannot be held that the petitioner was subjected to hostile discrimination vis-a-vis Ms. Shelka Dutt.
(12) There is also no merit in the petitioner's contention that the action of respondent No. 3 in not permitting the petitioner to appear at the compartmental examination, is malafide. The allegation of malafides against respondent No. 3 is not supported by adequate pleadings and materials. The only circumstance stated in the writ petition is that the petitioner's mother is a founder member of a recently registered Delhi Public School Employees Association and that this has irked the third respondent. The third respondent has denied this allegation and has stated that the decision was taken not by him alone but by the Promotion Committee consisting of Class Representatives, Class Teachers, Vice-Principal and Principal. Even otherwise, the petitioner has not stated how the third respondent is aggrieved by the formation of the D.P.S. Employees Association and why he should be irked by it to the extent of doing harm to the petitioner. Moreover, it is stated in the reply affidavit that a number of students including children of the staff have been detained and that even students who had performed marginally better than the petitioner were also detained. Therefore, we reject the contention that the third respondent acted malafide in the case of the petitioner.
(13) We have held that the denial of opportunity to the petitioner to appear at the compartmental examination was in violation of clause 35 of the Instructions issued by Directorate of Education. But this finding does not necessarily mean that the petitioner is entitled to the reliefs claimed in the writ petition. Having regard to the fact that the jurisdiction under Article 226 of the Constitution is only discretionary, we are inclined to take the view that the reliefs claimed by the petitioner cannot be granted in the facts and circumstances of this case. We take such a view for the following reasons: (1) The final examinations for Class Xi were held from 9th March, 1994 to 18th March, 1994. The results were declared on 28th March, 1994. The parents of the students including the petitioner were duly informed about the results. The next session for Class Xii commenced on 4th April, 1994. The compartmental examinations in the school were held in July 1994. This civil writ petition was filed only on 9th September, 1994, i.e. five months after the commencement of the academic session for 1994-95. Only if the petitioner's writ petition was allowed by directing respondent No. 3 to hold a special compartmental test for him and only if the petitioner obtained sufficient marks to make him eligible for promotion to Class Xii, he could have been admitted to Class XII. The arguments in the case were concluded only on 31st October, 1994. At the same time the academic session for Class Xii had already started as early as on 4th April, 1994. In these circumstances we are of the view that the filing of the writ petition on 9th September, 1994 was highly belated. (2) The arguments in the writ petition were concluded on 31st October, 1994. Even if a compartmental examination was conducted immediately and the petitioner secured sufficient marks and got promoted to Class Xii, the petitioner could not have satisfied the requirement of minimum attendance in Class XII. (3) Admittedly the petitioner is not a bright student. The reply filed by respondents 3 and 4 has indicated the consistently poor performance of the petitioner not only in Class Xi but also in the lower classes. It would not be in the interest of such a student to be admitted in Class Xii, seven or eight months after the commencement of the academic year. He would not be able to cope up with the situation. (4) According to the learned Counsel for respondents 3 and 4, the Instructions issued by the Directorate of Education are only administrative directions or guidelines which are not enforceable through proceedings under Article 226 of the Constitution. But according to the petitioner they are instructions issued under Rule 41 of the Delhi School Education Rules, 1973 and, therefore, statutory in character and hence enforceable. No material was placed before us which would have enabled us to hold that the said instructions were issued in exercise of the powers under Rule 41 of the said Rules by the Administrator or by any other authority on the strength of a valid delegation. Respondents 1 and 2 have not come forward to assist the Court in this case. It is also significant that respondent No. 2 Director of Education did not interfere in the matter in spite of the representations sent to him by the petitioner's mother quoting the above mentioned Instructions issued by the Director of Education. (5) The petitioner is claiming the benefit of a concession extended to students who failed in the examinations. Clause 35 itself stipulates certain norms for eligibility to claim the benefit of concession. Apparently respondents 3 and 4 followed a higher norm by insisting on a minimum of 25% marks in the failed subject and also a minimum of 33% of marks in the aggregate in all subjects. This was supposedly done to maintain the standard of education in the school. The norm might have been fixed either by respondents 3 and 4 themselves or by the D.P.S. Society as indicated in the document produced Along with the affidavit of respondent No.3. However, it is claimed that theorem has been followed uniformly in all cases. The petitioner has not pointed out any instance where respondents 3 and 4 extended the benefit to a student who secured less than 25% in the failed subject or less than 33% in the aggregate in all the subjects. Even in the case of Ms. Shelka Dutt, the petitioner has not taken such a specific contention. In academic matters like the conduct of examination, awarding of marks and norms for promotion to higher classes, interference by Court should be only minimum and that too only in extreme cases of dear injustice or blatant abuse of power. In these circumstances we decline to invoke the discretionary jurisdiction under Article 226 of the Constitution for granting the reliefs claimed in the writ petition. In view of this, it is not necessary to consider in this case whether a writ will lie against respondents 3 and 4, an objection raised on their behalf. Accordingly, the writ petition is dismissed with no order as to costs.