Uttarakhand High Court
Master Varda Nanda vs Central Board Of Secondary Education ... on 21 February, 2017
Author: V.K. Bist
Bench: V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 473 of 2016
Master Varda Nanda. .....Petitioner
Versus
Central Board of Secondary Education & others.
....Respondents
Mr. Vivek Pathak, Advocate for the petitioner.
Mr. Shashank Upadhyaya, Advocate for respondent nos. 1 & 2.
Mr. Ajay Veer Pundir, Advocate for respondent no. 3.
Dated: 21st February, 2017
Hon'ble V.K. Bist, J.
This petition has been filed by the petitioner seeking the following relief:
"(i) a writ, order or direction in the nature of certiorari quashing the order dated 25th February, 2016 passed by/communicated to the petitioner by respondent no. 2, whereby it has been communicated that the competent authority of the central board of secondary education (hereinafter called the board) has rejected the petitioner's candidature for appearing in AISSCE 2016."
2. Briefly put, the case of the petitioner is as follows:
Petitioner, namely, Master Varda Nanda is a disabled child and is suffering from BLA both legs & both arms and has been certified to be 100% disabled by the Medical Board presided by the Chief Medical Officer, Haridwar. The petitioner was a student of Class XIth in Army Public School No. 2 Roorkee. After completion of the Academic Year, he was promoted to the next class on special grounds in the Army Public School No. 1, Roorkee. It is alleged that the petitioner 2 is a differently abled child and was promoted to next class as a special case on the basis of prevalent directions. After getting admission in Class XIIth, the petitioner pursued his studies. According to the petitioner, in order to secure a Class XIIth pass certificate, he was required to appear in the board examination conducted by the Board. Petitioner submitted his application form for registration/ appearance in the examination. Thereafter, the petitioner appeared in the practical examination. On 08.01.2016, Section Officer (Exams), on behalf of respondent nos. 1 & 2, wrote a letter to the respondent no. 3 referring to letter dated 29.11.2015 regarding concession, namely, permission for extra time and amanuensis and to provide disability certificate of the petitioner. Thereafter, respondent no. 3 wrote a letter to the petitioner on 11.01.2016 for making necessary compliance in terms of the letter dated 08.01.2016.
The respondents issued a check list of Class XII exam 2016, in which, the name of the petitioner and his roll number also found figure. On 20.01.2016, Section Officer (Exams), Central Board of Secondary Education, Regional Office, Dehradun, wrote a letter to the respondent no. 3, rejecting the request with regard to permission for admission or A.I.S.S.C.E., 2016. By the said letter, it was also informed that a student, who got failed in 3 subjects in Class XI, shall not be permitted to get the direct admission for A.I.S.S.C.E, 2016. The said letter was served to the petitioner on 27.01.2016. On 01.02.2016, the respondent no. 3 wrote a letter to the Section Officer (Exams), C.B.S.E. mentioning therein the difficulties and challenges being 3 faced by the petitioner and requested him to permit the petitioner to appear in the remaining A.I.S.S.C.E., 2016 examination, after validation of his examination report. On 08.02.2016, the petitioner also submitted a representation before the Chairman, C.B.S.E. On 11.02.2016, the respondent no. 2 wrote a letter to the respondent no. 3 with regard to the direct admission of the petitioner and directed him to scrutinize the required formalities for the direct admission in Class XII and, after being satisfied with the fulfillments of norms and eligibility of the child, provided for issuance of a certificate to this effect. On 15.02.2016, the respondent no. 2 wrote a letter to the respondent no. 3 for providing permission to use scribe for the petitioner. On 17.02.2016 and 24.02.2016, letters were written by the Principal to the respondents for taking immediate action, as the examinations were scheduled from 01.03.2016. It is alleged that, on 25.02.2016, the Assistant Secretary (Exams), C.B.S.E. informed the respondent no. 3 that the case of the petitioner for direct admission has been rejected by the competent authorities. Hence, this writ petition.
3. On 11.11.2016, after hearing the parties, co- ordinate bench of this Court directed the C.B.S.E. to do the needful in the matter and to arrange for compartment examination for the petitioner. Operative portion of the order dated 11.11.2016 is being reproduced below:
"10. In view thereof, let the CBSE do the needful in the matter and arrange for compartment examination for the petitioner 4 at Roorkee, District Haridwar. It is, however, made clear that all the expenses for this examination shall be borne by the parents of the petitioner.
11. It is further made clear that the result of the petitioner shall not be declared, which shall be subject to the final determination in the writ petition."
4. Mr. Vivek Pathak, learned counsel for the petitioner submitted that, in spite of this Court's order dated 11.11.2016, the compartment examination of the petitioner has not been conducted so far. He submitted that now the board examinations are scheduled from 09.03.2017 and 20.03.2017 is the examination date for mathematics subject. He submitted that the grievance of the petitioner will be redressed in case the petitioner is permitted to appear in the examination to be held on 20.03.2017.
5. Mr. Ajay Veer Pundir, learned counsel appearing for the respondent no. 3 submitted that the Army Public School is ready to permit the petitioner to appear in the examination to be held on 20.03.2017. Mr. Shashank Upadhyaya also agreed to the same, but when the Court, after recording their statement, intended to issue such direction and close the writ petition, Mr. Shashank Upadhyaya started arguing on merit and opposed the petition.
6. Mr. Shashank Upadhyaya, learned counsel appearing for the respondent nos. 1 & 2/C.B.S.E. submitted that the core legal issue in this case is, whether a 100% disabled child suffering from cerebral 5 palsy, failed in four subjects out of five in class IX, be permitted to appear in senior secondary examination conducted by Central Board of Secondary Examination (hereinafter called 'Board') and Board be compelled to declare result without deciding the core legal issue in violation of its own statue i.e. examination bye laws and/or whether disabled child can be exempted from minimum qualification required to appear in senior secondary examination conducted by Board, is to be decided by this Court. He submitted that Board made all efforts to ensure compliance of the interim order of this Court. He submitted that another issue raised by the petitioner is that scribe was not provided of his choice and scribe was changed without notice is absolutely wrong and misleading to this Court by the petitioner. Petitioner never objected for scribe or requested for change of scribe to the examination superintendent of the examination centre. Therefore, now to raise this issue is just to mislead this Court. He submitted that the examination byelaws clearly speak about eligibility criteria, which reads as under:-
"Examination Bye-Laws 7.5 of the Board-
7.5 Admission to Class XII
(i) As the syllabus prescribed at Senior level is of two years integrated course, no admission shall be taken in class XII directly, provided further that admission to Class XII in a school shall be open only to such a student who:
a) has completed a regular course of study for Class XI and has passed class XI examination from an institution affiliated to this Board.6
b) has completed a regular course of study for Class XI and has passed class XI examination from an institution affiliated to this Board and migrating from/within one city/state to another only on the transfer of the parent(s) or shifting of their families from one place to another, after procuring from the student the mark sheet and the Transfer Certificate duly countersigned by the Board;
and
c) has completed a regular course of study for Class XI and has passed class XI examination from an institution recognized by/affiliated to any recognized Board in India can be admitted to a school affiliated to this Board only on the transfer of the parent(s) or shifting of their families from one place to another, after procuring from the student the mark sheet and the Transfer Certificate duly countersigned by the Educational Authorities of the Board concerned.
Notwithstanding anything contained in the rules above, Chairman shall have the powers to allow change of school for better academic performance, medical reasons etc. to avoid undue hardship to the candidate(s).
In case of all such admissions the schools would obtain post facto approval of the Board within one month of admission of the student.
Examination Bye-Laws 40. 1 (vi) of the Board - 40.1 (vi) Pass Criteria (Secondary School Examinations) "In order to be declared as having passed the Class XI Examination a candidate shall obtain 33% marks in all the subjects. The pass marks in each subject of Examination shall be 33%. In case of subjects involving practical work a candidate must obtain 33% marks in theory and 33% in 7 practical separately in addition to 33% marks in aggregate in order to qualify in that subject."
7. In support of his submission, learned counsel appearing for the C.B.S.E. relied on the judgments of the Hon'ble Apex Court, which reads as under:-
In the matter of "Regional Officer, CBSE vs. Ku. Sheena Peethambaran and others" reported in (2003) 7 SCC 719, the Hon'ble Apex Court has held as follows:
".. Merely forwarding of an examination form by an institution affiliated to the examining body is no surety that the examination body would necessarily permit the candidate to take the examination. The forms after being sent are scrutinized and checked by the examining body. (Para 5)"
"This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases it is ultimately pleaded that since the course was over or the result had been declared, the matter deserves to be considered sympathetically. It results in very awkward and difficult situation. Rules atare straight into the face of the plea of sympathy and concessions, against the legal provisions. (Para 6)"
"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 1 had failed to clear her Class IX examination which was a 8 necessary requirement as provided under the bye-laws of the Board so as to be entitled to appear in class X examination conducted by the Board. Despite notice, no one has put in appearance on behalf of Respondents I 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 system and ultimately, adversely affects the academic standards. (Para 8)"
In the matter of "C.B.S.E. and another vs. P. Sunil Kumar and others, reported in 1998 (5) SCC 377, the Hon'ble Supreme Court has held as under:
"........ 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 the 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 mis- placed sympathy in favour of students....."
In the matter of "Guru Nanak Dev University vs. Parminder Kr. Bansal, reported in 1993 (4) SCC 401, a three judges bench of Hon'ble Apex Court has held as follows:
"We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced does no service to anyone. From the series of orders that keep coming before us in academic matters. We find that loose, ill-conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive 9 of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later when serious complications might ensue from the interim orders itself. In the present case, High Court was apparently moved by sympathy for the candidates than by an accurate assessment of even the prima facie legal position. Such orders cannot be allowed to stand. The Courts should not embarrass academic authorities by themselves taking over their functions."
In the matter of A.P. Christians Medical Educational Society vs. Government of Andhra Pradesh and another, reported in 1986(2) SCC 667, a three judges bench of Hon'ble Supreme Court has held as under:
"..... We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the Court to disobey the laws."
He submitted that, on the basis of legal position, petitioner deserves no sympathy and the writ petition deserves to be dismissed.
8. I have considered the submission of learned counsel for the parties. Judgments of the Hon'ble Supreme Court cited by the respondents' counsel are binding. It is true that Court should not pass order only on the ground of sympathy. It is also correct that 10 order should not be passed ignoring the relevant rules. But, in the present case, this Court finds that the petitioner completed his studies in Class XI and was promoted to next class i.e. Class XII on 'special ground'. Examination Bye-Law 7.5 provides that admission to Class XII shall be open to such student, who has completed a regular course of study for Class XI and has passed Class XI examination from an institution affiliated to the Board. It further provides admission in such cases, where candidate has passed from an institution affiliated to the Board and migrated from/ within one city/state to another on the transfer of the parent(s) or shifting of their families from one place to another. It also provides that "Notwithstanding anything contained in the rules above, Chairman shall have the powers to allow change of school for better academic performance, medical reasons etc. to avoid undue hardship to the candidate(s)."
9. The petitioner was promoted to Class XII. He is a Class XII student, studying in the Army Public School No.1 Roorkee, District Haridwar. 100 per cent disability of the petitioner is not disputed. In India, reservation/benefit is given on the basis of backwardness, caste and minority. In my view, the disabled persons are the best persons, who deserve special support from the government as well as society, as most of them are disabled for no fault of them. They have better claim than those who are socially and economically backward. There is full opportunity to rise at any level to a physically and mentally healthy 11 person, though he is socially or economically backward, but physically handicapped person has limitation. In the present case, considering all facts and circumstances, the case of the petitioner deserves to be referred to the Chairman of the respondent Board.
10. Jaipur Bench of the Rajasthan High Court, in the matter of Suraj Prasad Chaturvedi Vs. The State of Rajasthan and others, reported in 1979 WLN 582, has, in a very nice manner, discussed the issue in the following manner:
"37. Before parting with this judgment, I may again observe that in matters of providing relief to those who have been cursed by the nature or God and are physically handicapped, the respondent State and its functionaries should take a very liberal and beneficial attitude of the entire matter. This case should not be treated as a legal battle between a citizen & the State, because one who is already handicapped and has mustard up courage to come to this Court, should be respected by the State which represents all the fortunate, privileged, & unprivileged rich and poor, highly placed persons and the down trodden. Such physically handicapped persons who are lowest in the ladder, require best of the attention of the State which is a social welfare State & which according to the Constitution given by the founding father is committed to do justice social, economic and political to all citizens of this State."
11. Moreover, in the present case, an interim order was passed on 11.11.2016. Same has neither been challenged by the respondent Board nor 12 complied. However, learned counsel for the respondent Board submitted that respondent Board made all efforts for the compliance of Court's interim order. But, fact is that there has been no compliance, as the respondent Board has not arranged the compartment examination of the petitioner.
12. Considering all these facts, I dispose of the writ petition by directing the respondents to permit the petitioner to appear in the examination alongwith regular students, which is scheduled on 20.03.2017; but, by treating his examination as compartment examination. The Chairman of the respondent Board is requested to consider the case of the petitioner afresh by considering totality of case. Result of the petitioner will be declared after the decision of the Chairman. Since the petitioner is handicapped, he will be provided scribe in accordance with the C.B.S.E. norms. Order dated 25.02.2016 stands quashed.
13. No order as to costs.
(V.K. Bist, J.) 21.02.2017 Arpan