Calcutta High Court (Appellete Side)
Shri Goutam Lahiri vs The Union Of India & Ors on 15 December, 2011
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
W. P. No. 20435(W) of 2011
SHRI GOUTAM LAHIRI
Versus
THE UNION OF INDIA & ORS.
For the Petitioner : Mr. Biswaroop Bhattacharya
Mr. Sirsanya Bandyopadhyay
For the Respondent Nos. 2 & 3 : Mr. Sanjay Kr. Baid
For the Respondent Nos. 4 to 6 : Mr. Saptangshu Basu Mr. Siddartha Banerjee Mr. Suchayan Banerjee Judgment On: December 15, 2011.
This writ petition has a long chequered history. The petitioner's son is a student of W.W.A. Cossipore English School (hereinafter referred to as the said school). The said School is affiliated to the Council for the Indian School Certificate Examination (hereinafter referred to as the Council). Despite the petitioner's son secured pass mark for promotion to the next higher class, as per the Regulations framed by the Council, he was not promoted to Class X by the school authority as he 2 could not secure the pass mark as per the norms fixed by the school authority. The petitioner, thus, felt aggrieved as his son was not granted promotion from Class IX to Class X. Accordingly, he filed a writ petition being W.P. No. 9238(W) of 2010 before this Hon'ble Court earlier. In the said writ petition the petitioner not only prayed for issuance of direction upon the school authority for promoting his son to Class X but he also prayed for issuance of direction upon the Council to allow his son to appear at the School Final Examination, scheduled to be held in 2011 by waiving the minimum attendance criteria. The relief which the petitioner claimed in the said writ petition, was not granted by a Learned Single Judge of this Hon'ble Court. The writ petition was ultimately disposed of with a direction upon the school authority to allow the petitioner's son to take the Annual Examination for promotion from Class IX to Class X, whenever it is so conducted, waiving the attendance criteria with a rider that if the petitioner's son succeeds to clear such examination, he will be promoted to Class X for pursuing further study. It was further observed in the said order that it will be open to the Council to issue necessary direction to the school to abide by the pass criteria fixed by it for regulating promotion of students from Class IX to Class X, if it so thinks fit.
The petitioner was not satisfied with the said order. He preferred an appeal challenging the propriety of the said order before the Appeal Court. On an 3 application filed in the said Appeal being A.S.T. 15 of 2011, an interim order was passed by the Hon'ble Appeal Court by permitting the petitioner's son to sit for the selection Mock Test for Class X which was scheduled to be held on 8th January, 2011. Despite such interim order was passed, the petitioner's son was not permitted to sit in the Test examination. Be that, as it may, the Appeal Court after taking into account the agony of the poor child, who on the eve of his examination, was made to suffer untold trauma and distraught pain of the indefinite future as to whether he would be allowed to sit for examination or not, ultimately directed the Council to allow the petitioner's son to sit for his I.C.S.E. Examination for the year of 2011 by treating him as a special case without setting it as precedent in any manner. The Council was, thus, directed to issue Admit Card and other required formalities so as to enable the petitioner's son to sit for the examination which was scheduled to begin from 28th February, 2011 onwards. In order to facilitate the process, the school authority was also directed to comply with all necessary formalities required for the purpose of the petitioner's son to sit for the examination as was required to be done by the school authority. The school authority was also directed to comply with the entire set of formalities by 7th February, 2011 without fail and send the same forthwith to the Council. Both the appeal and the interim application were, thus, disposed of with the above direction.
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Even thereafter the misery of the petitioner's son did not come to an end as another problem cropped up following a dispute between the school authority and the petitioner as to how much money the petitioner was required to pay to the school on different accounts such as Fee Book charges, Examination Fee for the Council, Readmission charges, Session charges, Tuition Fees for 12 months and Laboratory Fee for allowing his son to be sent up for final Examination. To resolve the said dispute another application was taken out by the petitioner for clarifying the order passed by the Division Bench of this Hon'ble Court on 3rd February, 2011 in connection with the A.S.T. No. 15 of 2011. The Appeal Court clarifies its earlier order on 11th February, 2011 by directing the petitioner to deposit Diary and Fee Book charges of Rs.35/- and the Examination Fee for Council of Rs.3500/- within a stipulated period and upon such deposit the school authority was directed to complete all the formalities on the day when such charges will be deposited by the petitioner. Though the dispute between the parties with regard to the charges which the petitioner was required to deposit for his son for the academic year of Class X, was set at rest by the Hon'ble Appeal Court in the said order but the issue regarding grant of exemption in respect of SUPW criteria was left to the Council for its consideration and the Council was directed to consider the said issue by keeping in view the peculiar facts and circumstances under which the Division Bench permitted 5 the petitioner's son to sit for the examination. Ultimately, the petitioner's son appeared in I.C.S.E. Examination in 2011. He could not secure pass marks in three subjects such as:
(i) Mathematics,
(ii) Science (Phy-E, Che-E, Bio-E) &
(iii) Economic Application.
He secured 13% marks in Mathematics, 17% marks in Science and 17% marks in Economic Application. Since the petitioner's son did not get any opportunity to attend the classes in Class X, he could not carry out any project work, practical and course work. As a result, internal assessment of the petitioner's son was neither evaluated by the school authority nor any marks was awarded to him in respect of his internal assessment.
It is now contended by the petitioner in this writ petition that had the petitioner's son been awarded internal assessment marks in two papers i.e. Science and Economic Application he could have been declared passed in the I.C.S.E. Examination. As a matter of fact, the petitioner now invites the Council to issue a Pass Certificate in favour of the petitioner's son by giving equal percentage of marks in his internal assessment as he obtained in the written test. 6
Since such relief was not granted by the Council to the petitioner's son, the petitioner has come before this Court with this writ petition challenging the said decision of the Council dated 25th August, 2011 contained in Annexure "P-2" to this writ petition at page 190.
The Council refused to grant the said relief by holding inter alia that awarding of marks to the candidate in his internal assessment is the responsibility of the Head of the school as per the I.C.S.E. Regulation, 2011. Since the Regulations do not permit the Council to grant any internal assessment marks to a candidate, the Council cannot usurp the duties and functions of the school inasmuch as the Council was not aware of the internal performance of the candidate concerned. The Council stated that the Council cannot disobey its own Regulation and as such the Council expressed its inability to grant any marks to the petitioner's son in respect of his internal assessment. It is also stated by the Council that there is no provision for grant of any grace mark to a candidate under the I.C.S.E. Regulation. As such no grace mark can be granted to the petitioner's son.
The said decision of the Council appearing at page 90 of the writ petition is under challenge in this writ petition at the instance of the petitioner. 7
Let me now consider as to how far the Council was justified in passing the impugned order in the facts of the instant case.
The provision relating to Internal Assessment, as laid down in the I.C.S.E. Regulation as follows:-
"D. Internal Assessment: All subjects have components of internal assessment, as detailed in Chapter II that are carried out by schools, on the basis of assignments/project work, practicals and course work. These marks are added to the component of the external examination set and marked by the Council.
NOTE : It is mandatory for the Heads of schools to ensure that all students registered for the examination are provided with a copy of the handbook entitled "Internal Assessment; an Integral component at the ICSE level".
The said provision, thus, makes it clear that internal assessment of the candidate can be done by the school on the basis of his performance in the assignments/project work, practical and course work. Admittedly, the petitioner's son did not attend the classes in Class X. He did not perform any assignment/project work, practical and course work in the said academic session. Unless a candidate performs his assignment/project work, practical and course work in the academic session, the school cannot assess the candidate's performance with regard to his project work, practical and course work. This is exactly what happened in the present 8 case. As such the school, in my view, cannot be accused for not awarding any marks in respect of internal assessment of the petitioner's son. Since internal assessment was left within the exclusive domain of the school in which the Council had no role to play, the Council also, in my view, cannot be permitted to encroach upon the domain of the school regarding internal assessment of a candidate. As such the refusal of the Council to give marks to the petitioner's son in the internal assessment, cannot be held to be unjustified.
It is rightly pointed out by the Council that the I.C.S.E. Regulation does not authorise the Council to give any grace mark. In fact, there is no provision to give any grace mark to any candidate under the I.C.S.E. Regulation. As such the petitioner cannot claim any grace mark for his son from the Council. Even assuming that the equivalent percentage of marks which the petitioner's son obtained in the written examination is given to the petitioner's son by way of grace mark and/or internal assessment marks, still then the petitioner's son cannot be declared as successful in the said examination as the pass mark of 35% cannot be achieved by the petitioner's son even by grant of such grace marks to the petitioner's son.
Accordingly, this Court holds that though this Court has sympathy for the petitioner's son but still then the Court is absolutely helpless to grant any relief to him even by holding that the school authority was absolutely responsible to upset the 9 academic career of the petitioner's son by not promoting him to Class X though he was eligible for such promotion as he obtained pass mark as per norms laid down by the Council.
This Court, thus, does not find any merit in this writ petition. The writ petition is, thus, disposed of with the above observations. Urgent xerox certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.)