Allahabad High Court
Atul Kumar Mishra vs Union Of India And 2 Others on 28 February, 2020
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - C No. - 3635 of 2020 Petitioner :- Atul Kumar Mishra Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Rohit Pandey,Shambhavi Tiwari Counsel for Respondent :- A.S.G.I.,Dhananjay Awasthi Hon'ble Ashwani Kumar Mishra,J.
1. Petitioner having cleared the entrance examination was admitted to Diploma in Elementary Education Course in Session 2017-2019, conducted by National Institute of Open Schooling (NIOS). The programme itself has been designed and developed under the directions of the Ministry of Human Resources Development, Government of India, for in-service untrained teachers working in Primary and Upper Primary level in different States of the country. Petitioner got himself registered and was allotted centre at Agrasen Iinter College, Lookerganj, Allahabad. The 18 months course consists of various theoretical and practical papers. The examination included four practical courses with its examination being conducted semester-wise. It appears that petitioner has passed all other papers except the practical course in paper code 512 i.e. Workshop Based Activities, in which petitioner has secured only 41 marks whereas the minimum pass mark was 50. It is for this reason that petitioner has not been able to clear the exam.
2. The National Institute of Open Schooling has published a date-sheet for conduct of last supplementary examination in D.El.Ed. course and different dates have been fixed for appearing in the supplementary examinations. Grievance of the petitioner is that there is no date fixed in respect of students such as petitioner, who have failed to clear the practical paper code 512 i.e. Workshop Based Activities. A prayer has been made in the writ petition to direct the respondents to conduct a Special Back Paper Examination of Paper no.512 Workshop Based Activities (I) (Practical) of the D.El. Ed. Course 2017-2019 and permit the petitioner to appear in the examination and also to declare his result.
3. A counter affidavit has been filed by respondent nos.2 and 3 stating that supplementary examinations are being held by NIOS pursuant to a direction issued by the Ministry which mandates such supplementary examination only to be conducted in respect of theoretical papers, and that there is no direction to hold supplementary test in subject code 512, which was a 12 days workshop programme in the first year first term of the course. It is stated that no fresh practical course is liable to be conducted only for petitioner, particularly when there is no direction issued by the Ministry in that regard.
4. Although notices have been accepted on behalf of respondent no.1 by the office of Assistant Solicitor General of India but none appears on its behalf nor any counter affidavit has been filed. A rejoinder affidavit has been filed to the counter affidavit of respondent nos.2 and 3 in the matter.
5. I have heard learned counsel for the petitioner and Sri Dhananjay Awasthi for the respondents and have perused the materials brought on record.
6. The fact that a 18 months special course is being undertaken for D.El.Ed. course only for untrained teachers working in primary and upper primary level of different States of the country is not in issue. Petitioner is also a teacher already employed and unless he passes D.El.Ed. course he has to lose his job as a teacher. As per the NCTE regulations unless the petitioner possesses such qualification he cannot continue as a teacher. Records reveal that petitioner has passed all papers except practical paper i.e. subject code 512. The respondents have already taken a decision to conduct supplementary examination in respect of those students who have failed to clear one or more subjects. Such examinations have been conducted as per the schedule published on 9.10.2019 and the last examination fixed was for 18.1.2020. It is admitted that in respect of paper code 512 no supplementary examination has been conducted.
7. In case the stand of respondents is accepted, it would amount to carving out two category amongst those admitted students who have failed in one or more papers. Once the respondents have introduced a supplementary system they cannot make any distinction and restrict holding of examination only to a particular set of papers while excluding other subjects. This would clearly be arbitrary and violate Article 14 of the Constitution of India. The students who have failed in one or more papers constitute a class in themselves and no distinction can be drawn amongst such students based upon the paper in which they have failed. Practical consideration in holding of course etc. would not justify a differential treatment in such examination. Once a decision is taken to hold supplementary examination the respondents will have to hold supplementary examination in all papers, be it theoretical or practical including paper code no.512. In such circumstances and for the reasons aforesaid, petitioner is entitled to grant of prayer made in the writ petition.
8. Writ petition, accordingly, succeeds and is allowed. Respondents are directed to hold supplementary examination for paper code 512 Workshop Based Activities (I) (Practical) of the D.El. Ed. Course 2017-2019, within three months from today, and permit the petitioner to appear in it and thereafter to declare his result. In case necessary permission is required, the first respondent would issue requisite orders to facilitate holding of such examination.
Order Date :- 28.2.2020 Anil