Calcutta High Court (Appellete Side)
Tara Chand Agarwalla vs State Of West Bengal & Ors on 13 March, 2012
Author: Harish Tandon
Bench: Harish Tandon
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Sl/ 13.3.12 W.P. 4734 (W) of 2012
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ac
Tara Chand Agarwalla
-vs-
State of West Bengal & Ors
Mr. Pulakesh Bajpayee
Mr. Ekramul Bari ... For Petitioner
Mr. Ranajit Chatterjee ... For Council
Mr. Biswarup Bhattacharya
Mr. Monoj Kumar Tewari ... For Respondent
No. 7
This writ petition is at the instance of a student who is admitted in Class XI in Commerce Curriculum with the respondent no. 7.
Admittedly, the petitioner passed out Class X examination from the Council for the Indian School Certificate Examination (in short ICSE). Respondent no. 7 admitted the petitioner in Class XI Curriculum in Commerce stream and sought for permission of the West Bengal Board of Higher Secondary Education for his admission.
The Board has taken a stand that the examination conducted by the ICSE Board without any life science and physical science subjects cannot be treated as equivalent to the examination conducted by the West Bengal Board of Secondary Examination. The petitioner has placed a notification, being 185-SE- (HS)/8C-04/06 dated October 11, 2006, issued by the Government of West Bengal, wherein Regulation 2(h) 2 defines 'equivalent examination' to mean a public examination, by whatever name it is called, instituted by an authority included in Schedule I, the curriculum of which is comparable to the pattern of Secondary W.P. 4734 (W) of 2012 Education and which terminates the studies of class X. Admittedly, Annexure-I contains the examination conducted by ICSE.
Mr. Ranajit Chatterjee, learned Advocate appearing for the Board, vehemently opposes the writ petition by contending that the writ petition should fall on the ground of delay and laches. He succinctly argues that the Court should not encourage such student, permitting him to appear in the examination if he approaches the Court at the nick of the examination by passing an interim order.
Learned Advocate, appearing for the Board, vehemently submits that prior to the Regulation of 2006, there was a similar notification/regulation which contains identical provision as to the determination of equivalence. The aforesaid provision came up for consideration before a Division Bench of this Court in MAT 216 of 2001, decided on March 12, 2001 where the Division Bench rejected the writ petition by holding that decision of the State in case of equivalence cannot be faulted with on the anvil of Article 14 of the Constitution of India.
By contending that the Court should not be swayed by sympathy in permitting the student to appear in the examination in clear contravention of the Rules, 3 Mr. Chatterjee places reliance upon a judgment of the Supreme Court in the case of Regional Officer, CBSE -vs- Kumari Sheena Peethambaran & Others, reported in (2003) 7 Supreme Court Cases 719.
Lastly it is submitted by Mr. Chatterjee that the Single Bench should respect the judgment of the Division Bench or the Larger Bench and cannot take a different decision that what has been decided by the Larger Bench and places reliance upon a judgment of the W.P. 4734 (W) of 2012 Full Bench delivered in the case of Ahamed Hossain Sk
-vs- State of West Bengal & Others, reported in 2001 (2) CHN 762.
On perusal of the Regulation of 2006 the equivalent examination is defined in Section 2(h). There is also no doubt that Schedule-I to the said Regulation includes ICSE Board. In explanation II to the said definition clause, it is said that the examination without the paper on Physical Science, Life Science and Mathematics shall not be considered as equivalent examination. Regulation 4 (3) of the said Regulation of 2006 permits admission into Class XI.
Upon reading Regulation 4 (3) of the said Regulation of 2006, prima facie, it appears that the candidate having passed the Alim examination from the Board of Madrasah shall be eligible to be admitted in Class XI of a recognised Institution provided the candidate passes an examination having English as compulsory or additional subject in case of non-laboratory 4 based subjects and one other language as compulsory or additional subject. But in case of laboratory based subject, the candidate has to pass such examination in Science as an additional subject securing at least 34% marks.
Learned Advocate for the Council could not place any material before this Court to show whether similar provision like Regulation 4 (3) did exist in an earlier notification/Regulation which was the subject matter before the Division Bench.
No material could also be placed before the Court whether the Alim Examination conducted by the Board of Madrasah contains compulsory subjects like Physical Science, Life Science and Mathematics.
W.P. 4734 (W) of 2012 Prima facie this Court finds that there is a tangible difference between a candidate who has passed an examination from any other Board than the candidate who has passed the Alim Examination from the Board of Madrasah.
Learned Advocate appearing for the Board, however, submits that such classification is reasonable, rational and permissible under the Constitution of India and as such the same should not be a criterion for the purpose of determining the case relating to discrimination.
The aforesaid contention requires a detailed scrutiny, which could only be done upon exchange of affidavits and upon giving an opportunity of hearing to the 5 respective parties.
Before doing so, it appears that such plea has not been taken in the writ petition but appears to the Court to be vital and pertinent for the purpose of rendering complete and effective answer to the dispute not only for the purpose of the instant writ petition but also for all time to come.
The point taken by the learned Advocate for the Board that Single Bench should not differ with the decision of the Division Bench, in my mind, there is not dispute to such settled proposition of law. Had the subject matter before the Division Bench or the Larger Bench was an interpretation of the provisions enshrined under Regulation 2006, the position is inevitable that the Single Bench has to follow the decision of the Division Bench. The case which was in hand before the Division Bench did not contain the provision like Regulation 4(3) where the student qualifying in Alim examination conducted by Board of Madrasah without having a subject like Physical Science, W.P. 4734 (W) of 2012 Life Science and Mathematics are treated to be equivalent to the examination conducted by the West Bengal Board of Secondary Education. It is settled that one or little difference or additional fact may change the complexion of the two decisions.
There could not be any future apprehension in the mind of the learned Advocate appearing for the Board that the Court would be swayed by sympathy if the 6 petitioner is allowed to appear in the examination conducted in the curriculum of Class XI at the time of final hearing of the instant writ petition.
Learned Advocate appearing for the Board put much emphasis on paragraph 6 of the judgment of the Apex Court delivered in the case of Kumari Sheena Peethambaran (supra).
On perusal of paragraph 6 it appears that the Apex Court held that if there is a rule staring therein on the face, the plea of sympathy and compensation cannot be accepted and runs counter to the legal provisions.
As indicated above, the provisions contained under the Regulation 2006 are to be interpreted in the manner whether the same can withstand on the envil of Article 14 of the Constitution and, therefore, it cannot be said that permitting the petitioner to appear in the examination runs counter to the statutory rules and/or regulations which guided the field.
Since this Court finds that a prima facie case is made out and proposes an order directing the Board to register the petitioner provisionally and the School authority shall also permit the petitioner to appear in the examination conducted for the curriculum of Class XI, subject to the result of this writ petition.
The Board is directed to register the petitioner W.P. 4734 (W) of 2012 provisionally and the School authority shall also permit the petitioner to appear in the examination conducted for the curriculum of Class XI.
7The petitioner is permitted to file supplementary affidavit within a week from date. The
respondents are permitted to file affidavit-in-opposition, both to the writ petition as well as to the supplementary affidavit, within three weeks from date. Reply, if any, be filed within a week thereafter.
It is, however, made clear that all points, including the point of delay, is kept open.
Let the matter be listed in the supplementary list under the heading 'Specially Fixed Matter' on 10th April 2012.
(Harish Tandon, J.)