Calcutta High Court (Appellete Side)
Ishita Jana vs The State Of West Bengal & Ors on 7 March, 2014
Author: Debasish Kargupta
Bench: Debasish Kargupta
1
07.03.2014.
S.D.
W.P. No. 2 (W) of 2014
With
CAN 38 of 2014
Ishita Jana
Vs.
The State of West Bengal & Ors.
Mr. Subrata Mukhopadhyay
Mr. Soumen Biswas
Ms. Malabika Bhoumic
.....For the Petitioner.
Mr. Ranajit Chatterjee
Mr. Prasenjit De
Mr. Nilratan Banerjee
....For the Council.
Mr. Billawal Bhattacharya
Mr. Arkaprava Sen
...For the Applicants.
This writ application is filed by the petitioner, astudent of
class XII of Bidya Bharati Girls' High School, District - Kolkata.
She was promoted to class XII. Her name was registered with the
respondent Council as regular student of the school under
reference. She attended requisite number of classes. The petitioner appeared in the test examination in respect of the ensuing Higher Secondary Examination to be conducted by the respondent Council in 2014. The petitioner failed in the above test 2 examination. Her name was not forwarded to the respondent Council for the purpose of allowing her to participate in the ensuing Higher Secondary Examination 2014 to be conducted by the respondent Council.
It is submitted by Mr. Subrata Mukhopadhyay, learned counsel appearing on behalf of the petitioner that there was discrimination in treating other similarly circumstanced students for recommending their names for appearing in the ensuing Higher Secondary Examination to be conducted by the respondent Council. According to Mr. Mukhopadhyay, the names of seven students as disclosed in paragraph 4 (e) of the affidavit‐in‐opposition to the application for vacating interim order were similarly circumstanced. Though the aforesaid students were allowed to participate in the ensuing Higher Secondary Examination, the wards of the petitioners have not been allowed to participate. It is submitted by Mr. Mukhopadhyay that the criteria mentioned in Regulation 6 of the West Bengal Council of Higher Secondary Examination Regulation 2006 (hereinafter referred to as the said Regulation 2006) are directory. Therefore, non‐fulfillment of Clause (c) of 3 Regulation 6 of the said Regulation 2006 cannot be the ground for rejecting the prayer of the petitioners to allow their wards to participate in the ensuing Higher Secondary Examination. It is also submitted by Mr. Mukhopadhayay that since the above Provisions are directory, the Academic Council of the respondent School adopted a Procedure for awarding 5% grace marks to those candidates who had obtained 25% marks in one examination. According to Mr. Mukhopadhyay, since the above Provision of the said Regulation 2006 are directory, the Academic Council of the respondent School took a decision to allow those students to participate in the ensuing Higher Secondary Examination who had failed in the one subject even after enjoying the benefit of grace marks of 5% in respect of one subject. It is also submitted by him that in the event the Provisions of the said Regulations 2006 are mandatory then the students whose names are disclosed in the affidavit‐in‐opposition to the application for vacating application should not have been allowed also in the ensuing Higher Secondary Examination. Mr. Mukhopadhyay submitted at no point of time the decision of the Academic Council of the respondent School to award marks or the norms for 4 forwarding the names of the students to participate in the ensuing Higher Secondary Examination was either communicated to the respondent Council or to the petitioner. According to Mr. Mukhopadhyay, since relevant records have not been produced before this Court there are gray areas to give any weightage to the statements made in the vacating application or in the affidavit‐in‐ opposition filed by the respondent school in respect of this writ application.
It is submitted by Mr. Billadwal Bhattacharya, learned counsel appearing on behalf of the respondent School that the names of those students which are disclosed in the affidavit‐in‐ opposition to the application for vacating the interim order were not similarly circumstanced with the petitioner. They were awarded 5% marks in respect of one subject in which they obtained at least 25% marks in the above test examination and those students were unsuccessful in respect of one compulsory elective subject even after awarding the marks in respect of one subject on the basis of a decision taken in the meeting of the Academic Council of the respondent school their names were forwarded to the respondent Council for allowing them to 5 participate in the above examination. According to Mr. Bhattacharya, the respondent school at liberty to take decision with regard to the norms and standard of holding the test examination of its students. The respondent Council had no scope to interfere with the above aspect since those were internal arrangements. According to him, the Provisions of the said Regulations 2006 are mandatory and there was no deviation from the Provisions of the said Regulations 2006. According to him those candidates who have not fulfilled the eligibility criteria prescribed in the Regulation 6 of the said Regulations 2006 cannot be allowed to participate in the ensuing Higher Secondary Examination.
Mr. Bhattacharya relied upon the decision of C.B.S.C. and Anr. vs. P. Sunil Kumar reported in 1998 (5) SCC 377 and the decision of Sudhangshu Kumar Ghosh vs. State of West Bengal reported in AIR 2010 CAL 86.
It is submitted by Mr. Ranajit Chatterjee, learned counsel appearing on behalf of the respondent Council that the action of the respondent school in not forwarding the name of the petitioner for non‐fulfillment of the criteria of passing test 6 examination, amongst others was correct in accordance with the Provisions of Regulations 6 of the said Regulations 2006. According to him, the norms and standard of holding the internal examination, i.e. the test examination is the duty of the school concerned. It is submitted by Mr. Chatterjee that even after awarding grace marks the students whose names have been disclosed in the affidavit‐in‐opposition of the application for vacating interim order they were unsuccessful in respect of one compulsory elective subject. Drawing the attention of this Court towards the Provision of Clause (2) of Regulation 9 of the said Regulations 2006, it is submitted by him that by giving benefit of interchanging of compulsory elective subject there was no impropriety of action on the part of the respondent school. It is also submitted by Mr. Chatterjee that the Provisions of said Regulations 6 and 9 of the said Regulations 2006 are mandatory and not directory in accordance with the settled principles of law. Mr. Chatterjee relies upon the decision of Lachmi Narayan vs. Union of India reported in (1976) 2 SCC 953 and Ms. Debapriya Ghosh vs. State of West Bengal and Others reported in AIR 2005 CAL 76 in support of his above submissions.
7I have heard the learned counsel appearing for the respective parties at length and I have given anxious considerations to the facts and circumstances of the case. It is not in dispute that the petitioner was promoted to class XII of the respondent school. No dispute is raised by the respondent school with regard to fulfillment of their criteria of attendance in Class XII. Admittedly the petitioner appeared in the test examination for appearing in the ensuing Higher Secondary Examination to be conducted by the respondent Council. It is not in dispute that the writ petitioner was unsuccessful in the test examination. For adjudication of the issues involved in this writ application, 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; 8
(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 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 9 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."
10
At the very outset, the interpretation of the above provisions are taken up for considerations. It appears that in Regulation 6, the term 'must' is used for fulfillment of the criteria by the candidates for appearing in the Higher Secondary Examination. It is the settled principles of law that once the Statute uses the term 'must' it is to be treated as mandatory. Reference may be given to the decision of Lachmi Naryayan (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."
11Therefore, I do not find any substance in the submissions on behalf of the petitioner so far as the above ground is concerned. After perusal of the provisions of Clause (c) of Regulation 6 of the said Regulations 2006, I find that admittedly the wards of the petitioners did not fulfil the above eligibility criteria to participate in the ensuing Higher Secondary Examination 2014 to be conducted by the respondent Council. It is the settled principles of law that a student cannot be allowed to participate in an examination without fulfilling the statutory provision of law. In the event, a Court of Law allows a student to appear in an examination without fulfillment of any of the eligible criteria it amounts to abuse of the process of law. Reference may be made to the decision of P. Sunil Kumar (supra) and the relevant portions of the above decision are set out 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 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 12 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." In view of the above, I do not find that any case is made out for obtaining an order from a Court sitting in Writ jurisdiction to allow the petitioner to participate in the ensuing Higher Secondary Examination.
So far as the allegation of discrimination allowing similarly circumstanced to participate in the ensuing Higher Secondary Examination is concerned, it appears from the materials‐on‐record that the following names have been disclosed in the affidavit‐in‐ opposition to the application for vacating interim order in support of the submissions made on behalf of the petitioner.
"1. Disha ‐ Science Stream.
2. Debarpita ‐ Science Stream.
3. Ahona ‐ Science Stream.
4. Amrita Chakraborty ‐ Science Stream.
5. Balaka Ghosh ‐ Science Stream.
6. Ashmita Dutta ‐ Science Stream.
7. Soma Choudhury ‐ General Stream.13
After considering the mark sheet of all the aforesaid students, I find that grace marks of 5% were awarded to all of them in accordance with the Provisions of Clause (1) of Regulation 9 of the said Regulations 2006. It further appears from the annexures that interchanging the compulsory elective subject in which the aforesaid students were unsuccessful even after enjoying the grace marks they were eligible to participate in the ensuing Higher Secondary Examination and the petitioner is not similarly circumstances as appears from the admitted facts of this case as recorded hereinabove. That apart in the event the aforesaid students are declared not eligible to participate in the above examination that will not affect the fate of this writ application so far as the interests of the petitioner is concerned. Needless to point out that a Judicial order cannot allow a wrong to be perpetuated. Needless to point out that it is necessary to point out that the respondent Council had no jurisdiction or authority to give any direction aiming at to interfere with the independent functioning of the respondent school. According to the settled principles of law each and every Institution ought to have or might have been laid down its own norms, terms and 14 conditions for declaring a student to be successful in internal examination as well as for taking test examination. Reference may be made to the decision of Ms. Debapriya (supra) and the relevant portions of the above decision are set out 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 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 15 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."
In view of the above discussions and observations, this writ application stands dismissed.
There will, however, be no order as to costs.
The application bearing CAN 38 of 2014 stands disposed of accordingly.
Let photostat plain copy of this order, duly countersigned, by Assistant Registrar (Court) be given to the parties on usual undertaking.
( Debasish Kar Gupta, J. )