Delhi High Court
Independent Schools??? Federation Of ... vs Central Board Of Secondary Education & ... on 1 September, 2011
Equivalent citations: AIRONLINE 2011 DEL 1, (2011) 183 DLT 211 (2011) 5 ESC 3474, (2011) 5 ESC 3474
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 11th August, 2011
% Judgment pronounced on: 1st September, 2011
+ LPA No.563/2011
Independent Schools‟ Federation of India (Regd.) ..... Appellant
Through: Ms.Shobha, Adv.
Versus
Central Board of Secondary Education & Anr. ..... Respondents
Through: Mr.Amit Bansal, Adv. for Resp.1
Mr.B.V. Niren, CGSC for Resp.2
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1 Whether reporters of the local papers be allowed to see the judgment? Yes
2 To be referred to the Reporter or not? Yes
3 Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
The appellant, Independent Schools‟ Federation of India (for short
„the Federation‟), claiming to be espousing the cause of the interest of the
schools which are affiliated to the Central Board of Secondary Education
(CBSE) invoked the jurisdiction of this Court under Article 226 of the
Constitution of India and prayed for declaring the Circular No. 39 dated
LPA No.563/2011 page 1 of 19
20th September, 2009 and Circular No. 40 dated 29th September, 2009 issued
by the CBSE as unconstitutional and further issue of a writ of certiorari for
quashment of the same.
2. It was averred in the writ petition that the CBSE issued the circular
dated 20th September, 2009 for introducing the examination reforms and
Continuous and Comprehensive Evaluation (CCE) and directed that the
senior secondary schools need not undertake the board examination for
the 10th class, whereas the schools upto high-school standards shall take up
the board examination for the 10th class. Thus, the board examination for
class 10th was withdrawn by the CBSE a month prior to the date of
examination. The board advised all other schools to award grades to the
students of 10th class as per the CCE scheme. On 29th September, 2009, the
CBSE issued a circular introducing grading system at the secondary level
for class 9th and 10th effective from the academic year 2009-2010. The
purpose of issue of the circular, as claimed by the CBSE, was is to reduce
the stress on the students and help in making holistic assessment of the
students, to minimize the misclassification of the students on the basis of
marks and to eliminate unhealthy cut-throat competition among the high
achievers.
LPA No.563/2011 page 2 of 19
3. The Federation assailed the circular dated 20th September, 2009 in
WP (C) No. 2226/2010 which was disposed of on 7th April, 2010 granting
liberty to the Federation to make a representation to the competent
authority. The circular dated 29th September, 2009 came to be challenged
in WP (C) No. 3433/2010 and this Court vide order dated 19th May, 2010
asked the Federation to submit a representation to the CBSE with a further
command that the CBSE shall dispose of the same by a speaking order
after affording opportunity to the representatives of the Federation. As set
forth, the CBSE rejected the representation on 12th August, 2010 stating
therein that the abolition of board examinations could reduce the stress
and anxiety of the students and minimise the classification and could help
in holistic assessment of the children. The CBSE has issued circulars
requiring the schools affiliated to it to follow the Continuous and
Comprehensive Evaluation Scheme for assessments. It has laid down the
procedure for the same.
4. After the rejection of the representation, the Federation impugned
the circulars, which have been mentioned hereinbefore as there had been
no adjudication whether the introduction of grading system for class 9 th
and 10th and abolition of examination in 10th standard is justified in the
LPA No.563/2011 page 3 of 19
backdrop of national curriculum framework and sustainable on the anvil
of reasonableness.
5. The learned Single Judge expressed the view that an expert body
like CBSE has taken the decision by consulting all stakeholders and such a
policy decision could not be interfered with on the ground that a better,
fairer or wider alternative policy is available.
6. Calling in question the legal pregnability of the order, Ms.Shobha,
learned counsel for the appellant has contended that the learned Single
Judge has fallen into error by expressing the view that the court should not
interfere with the opinion of the experts, particularly the academic bodies,
inasmuch as when an expert body acts in a total irrational manner and
defeat the purpose of education, the court can strike down the whole
action exercise in exercise of power of judicial review. It is her further
submission that the circular by virtue of which grading system has been
introduced though on the guise of examination reforms, the same in
actuality is detrimental to the interest of the students and further after the
action of the CBSE is appreciated with nuanced scrutiny it will clearly
LPA No.563/2011 page 4 of 19
reveal the unreasonableness and arbitrariness inviting the frown of Article
14 of the Constitution of India.
7. Learned counsel for the respondent submitted that the order passed
by the learned Single Judge is absolutely defensible as the CBSE has
undertaken the exercise after consulting the expert bodies and the
stakeholders and, therefore, the writ Court in exercise of power of judicial
review has appositely not dislodged the said decision. Learned counsel for
the respondents would further contend that the fundamental reason
inherent in the policy is to reduce the load on the students and to make a
CCE system and regard being had to the laudable purpose if deserves the
stamp of approval of this Court.
8. To appreciate the controversy, it is necessary to refer to the letter-
circular dated 20th September, 2009 issued by the CBSE. It deals with
examination reforms and CCE in the CBSE. In the said letter-circular, it
has been mentioned that in the larger context, education is to prepare
futuristic citizen for a meaningful and productive life in a globalised
society and hence there is a dire need to strengthen the education system
LPA No.563/2011 page 5 of 19
moreso in a pluralistic society which addresses itself to a heterogeneous
group.
9. Regard being had to the introduction of a functional and system of
school based evaluation, the CBSE has stipulated in the scheme how the
scheme would be helpful. We think it appropriate to reproduce clauses 1
to 5 of the said letter-circular, which read as follows: -
"1. Scheme of the Board
1.1 Senior Secondary Schools
a) There will be no Class X Board Examination w.e.f.
2011 for students studying in CBSE‟s Senior
Secondary schools and who do not wish to move
out of the CBSE system after Class X.
b) However, such students of Senior Secondary
Schools who wish to move out of the CBSE
system after Class X (Pre-University, Vocational
course, Change of Board, etc.) will be required to
take the Board‟s External (pen and paper
written/online) Examination.
c) Further, those students who wish to assess
themselves vis-à-vis their peers or for self
assessment will be allowed to appear in an On
Demand (pen and paper/online) Proficiency test.
1.2 Secondary Schools
The students studying in CBSE‟s Secondary
schools will however be required to appear in
Board‟s External (pen and paper written/online)
Examination because they will be leaving the
secondary school after Class X.
LPA No.563/2011 page 6 of 19
1.3 All Schools
1.3.1 The Continuous and Comprehensive Evaluation
(CCE) will be strengthened in all affiliated
schools with effect from October, 2009 in Class
IX.
1.3.2 An Optional Aptitude Test developed by the
CBSE will also be available to the students. The
Aptitude Test along with other school records
and CCE would help students, parents and
teachers in deciding the choice of subjects in Class
XI. All students of Class X in the current
academic year will be taking the CBSE Board‟s
Class X 2010 Examination. The CBSE will be
conducting this Examination. The weightage of
the school based assessment will remain the same
as per past practice, i.e. 20% each in the subjects
of Science, Social Science and Mathematics.
1.3.3 The new Grading system will be introduced at
Secondary School level (for Classes IX & X)
effective from 2009-10 Academic Session. The
details of grading scheme are being circulated in
a separate advisory to schools.
2. How would the Scheme help?
The above steps would help the learners and
parents, who are the primary stakeholders or
school education, in the following manner:-
a) It will reduce stress and anxiety which often
builds up during and after the examination
which could have an adverse impact on young
students especially in the age group of 13-15
years.
b) It will reduce the dropout rate as there will be
LPA No.563/2011 page 7 of 19
less fear and anxiety related to performance.
c) In the past there was practice to often finish
the entire syllabus much before time and
follow it up with Pre-Board(s) and study
leave. Now there will be greater focus on
learning rather than teaching to the test.
d) The emphasis on conceptual clarification
through experimental learning in the
classroom will increase since there will be
more time available for transaction of
curriculum.
e) It will help the learners to develop holistically
in terms of personality by also focusing on the
co-scholastic aspects which will be assessed as
part of the Continuous and Comprehensive
Evaluation scheme.
f) It is expected to prepare the students for life
by making students physically fit, mentally
alert and emotionally balanced.
g) The students will have more time on their
hands to develop their interests, hobbies and
personalities.
h) It will enable the students, parents and
teachers to make an informed choice about
subjects in Class XI.
i) It will motivate learning in a friendly
environment rather than in a fearful situation.
j) It will equip students with Life Skills
especially Creative and Critical thinking skills,
social skills and coping skills which will keep
them in a good stead when they enter into a
highly competitive environment later on.
3. Addressing the Concerns
The CBSE has been discussing the matter with its
stakeholders all over the country. A number of
issues are likely to be raised by students/parents
LPA No.563/2011 page 8 of 19
regarding this initiative, as it is being done for the
first time by any Board in India. A compilation of
such issues, and solutions offered by the Board in
the form of FAQs (Frequently Asked Questions) will
be soon available on the CBSE website. In case of
any clarification you may write through the
CBSE‟s website (detailed below) or mail your
queries to the Chairman CBSE by superscribing
"CBSE Examination Reform" on the top of the
envelop.
4. CCE Guidelines
Many of the Schools are already aware about the
CCE and are implementing the same. However,
in order to improve the quality of CCE, the
detailed guidelines are being issued and will
reach the schools shortly. These will also be
available on CBSE website (www.cbse.nic.in)
5. Teacher Workshops
Teacher training workshops will be conducted
simultaneously from October 2009 onwards.
These training workshops will be compulsory for
the Heads of Schools and two teacher
representatives. Details of these will be available
on the CBSE‟s website. Principals and trained
teachers will be thereafter interacting with
parents during Parent Teacher Meetings to create
awareness regarding the Board‟s Scheme and
address their concerns."
10. In the letter-circular dated 29th September, 2009, the CBSE addressed
the issue pertaining to introduction of grading at secondary school level
LPA No.563/2011 page 9 of 19
for classes 9th and 10th from the academic session 2009-2010. In the said
letter-circular reference has been made to the National Curriculum
Framework 2005 (NCF) which has envisaged an evaluation system which
would grade the students on their regular activities in the classroom and
enable students to understand and focus on their learning gaps and learn
through these as part of formative assessment. The scheme of grading, its
utility, advantage and operational modalities are given in detail. They
read as follows: -
"2. Scheme of Grading
2.1 As a matter of fact the Board has been preparing
itself and all the stakeholders for a change to move over
from numerical marking system to grading system
during the past few years by creating a climate of
acceptance. The Board has already in a phased manner,
introduced the grading system based on absolute marks
up to class VIII.
2.2. Now, therefore, the CBSE, in consultation with
the Ministry of Human Resource Development,
Government of India has decided to introduce nine
point grading system.
2.3 In this system, student‟s performance will be
assessed using conventional numerical marking mode,
and the same will be later converted into the grades on
the basis of the pre-determined marks ranges as
detailed below:
LPA No.563/2011 page 10 of 19
MARKS RANGE GRADE GRADE POINT
91-100 A1 10.0
81-90 A2 9.0
71-80 B1 8.0
61-70 B2 7.0
51-60 C1 6.0
41-50 C2 5.0
33-40 D 4.0
21-32 E1 ---
20 and below E2 ---
2.4 The Board has decided to introduce the above
grading scheme at Secondary level for classes IX & X
from current academic year 2009-10. Accordingly, the
„Statement of Subject wise Performance" to be issued
by the Board w.e.f. the Class X Examination 2010 will
have only grades.
2.5 Similarly, the schools are also directed to
introduce the above Grading Scheme in the evaluation
of their students in Class IX under the scheme of CCE
as detailed in the Circular No. 39 dated 20th
September, 2009.
3. How does it help?
3.1 The primary function of Grading is to
communicate effectively to a variety of stakeholders the
degree of achievement of an individual student. The
grading of student would also take away the
frightening judgmental quality of marks obtained in a
test leading to a stress free and joyful learning
environment in the school. This will also enable
maintaining a meaningful continuity in the assessment
pattern from the primary level to the secondary level
and also in ensuring a basic uniformity in the schools.
3.2 The system being implemented now will have
the following advantages:
LPA No.563/2011 page 11 of 19
It will minimize misclassification of students on
the basis of marks.
It will determine unhealthy cut-throat
competition among high achievers.
It will reduce societal pressure and will provide
the learner with more flexibility.
It will lead to a focus on a better learning
environment.
4. Operational Modalities
4.1 The student‟s performance shall be assessed
using conventional method of numerical marking.
4.2 The „Grades‟ shall be awarded to indicate the
subject wise performance.
4.3 The „Grades‟ shall be awarded on a nine point
scale as per Table at para 2.3.
4.4 Only Subject wise grades shall be shown in the
"Statement of Subject wise Performance" to be issued
to all candidates.
4.5 Subject-wise percentile score/rank at the National
level shall be provided to the schools on demand.
4.6 The practice of declaring Compartment/Fail shall
be discontinued.
4.7 Those candidates who obtain the qualifying
grades (D and above) in all the subjects excluding
Additional subject as per Scheme of Studies shall be
awarded a Qualifying Certificate.
4.8 Those candidates who have obtained E1 or E2 in
the subject shall have to improve their performance
through subsequent five attempts.
LPA No.563/2011 page 12 of 19
For example, a candidate who appeared in Board's
examination in March 2010 can appear in July 2010,
March 2011, July 2011, March 2012 and July 2012
only in subjects in which he/she has got grade E1 or
E2 till he/she gets qualifying grades (D and above) in
all the subjects excluding Additional subject as per
Scheme of Studies and becomes eligible for award of
Qualifying Certificate.
4.9 Those who get Qualifying Certificates shall be
eligible for admission in higher classes.
4.10 Those candidates who are not able to get
qualifying grades (D and above) in all the subjects
excluding Additional subject as per Scheme of Studies
shall not be permitted for admission in Class XI.
4.11 Exemptions available to differently abled
students as per CBSE‟s rule shall continue to apply.
4.12 The scheme shall also be applicable mutatis
mutandis in the assessment of academic performance
communicated to the students at the end of Class IX."
11. We have reproduced both the schemes in extenso to appreciate what
precisely the CBSE has done. As is noticeable, the whole endeavour has
been to improve the system of education, reduce the load on the students,
usher in assessment-oriented approach, cultivate a holistic system and
further make the education system more effective and productive regard
being had to the global trend and the requirement of 21st Century. The
LPA No.563/2011 page 13 of 19
CBSE, as is perceptible, has withdrawn the class 10th Board examination
and introduced the grading system. We have reproduced the table
relating to the grading system. It is submitted by Ms.Shobha, learned
counsel for the appellant that though the CBSE has put the policy decision
at a higher platform but the policy is neither fair nor non-arbitrary and
further it really does not disclose a discernible principle which would
satisfy the test of reasonableness. Learned counsel would submit that
examination reforms would never mean a routine change of method of
assessment by replacing marks by grades because it is only a cosmetic
change pertaining to assessment without bringing in other real necessary
spectra. It has been highlighted by her that the change in the typology of
the question papers and integration of the examination with the classroom
life would have really addressed the need and the concern and met the
requirement. It is urged that the method chosen by the CBSE is a
temporary and short-cut one in the name of holistic approach whereas it
really mars the quality of education and eventually the young students are
disastrously affected. It is canvassed by her that by virtue of the aforesaid
change, the system has not become healthy but the concept of grading is
virtually an eye-wash, which in ultimate eventuate would erode the
LPA No.563/2011 page 14 of 19
quality of the education system. As we have noted, the CBSE has replaced
marking system with the grading system and abolished the examination in
the 10th class. The scheme has been framed with the assistance of the
experts. It needs no special emphasis to state that the CBSE is an expert
body and taken advice from the experts and there has been a study on the
said aspect for some years.
12. Thus scrutinized, it is evident that the CBSE has kept in view the
interest of the young students and taken a policy decision to introduce a
different evaluation system. What is urged before us is that such a system
is arbitrary, unreasonable and irrational as it corrodes the marrows of
education by annulling the earlier system which provided for competing
in the board examination and obtaining marks. Be it noted, it is an
accepted fact that education is an extremely important facet of a civilized
society. It always had its signification and has gained more importance in
the modern day. As has been held in the case of Rohit Singhal & Ors. v.
Principal, Jawahar N. Vidyalaya & Ors., AIR 2003 SC 2088, education is
an investment made by the nation in its children for harvesting a future
crop of responsible adults who contribute to a well functioning society.
Students require nurture, care, protection and they have to be imbibed
LPA No.563/2011 page 15 of 19
with values of character. Education, as has been understood since
centuries, pertains to acquisition of information, knowledge, skill and
building up a rational mind. In the present scenario more focus and
emphasis have been laid on vocational and professional trainings. The
system of education has to be purposive. It guides a student at the tender
age and gradually shows him the path to enter into the different fields of
education, which have productivity, global awareness and
professionalism. The elan vital of education is to accept limitation and
strike a balance between tradition and modernization. It is an obligation of
today‟s generation to pay the debt to the future one. That is what the
CBSE has sought to achieve by introducing the new system.
13. Though the learned counsel for the appellant would criticize such
norms on certain grounds which we have indicated hereinbefore yet this
Court is not an expert to judge the decision of the CBSE that has been
arrived at after undertaking detailed exercises. It is a policy decision and
that too a policy decision relating to the field of education. One may not
be in a position to accept the same. To some, it may look like abolition of
competition and to others it may look simplistic. There may be a few who
may feel that in the name of change, a cosmetic approach has been done
LPA No.563/2011 page 16 of 19
and it could have been better. But, a significant one rider and limitation,
the role of the Court in exercise of judicial review is limited. In the
University of Mysore and Anr. v. C.D. Govinda Rao & Anr., AIR 1965 SC
491, it has been held that Courts should be slow to interfere with the
opinions expressed by the experts and the same should be left to the
decision of the experts who are more acquainted and familiar with the
problems.
14. In The Secretary & Curator, Victoria Memorial Hall, v. Howrah
Ganatantrik Nagrik Samity & Or., AIR 2010 SC 1285, it has been stated
thus -
"26. Thus, it is evident that the High Court did not
give any specific/good or relevant reason for not
accepting the recommendation made by Expert
Committee at initial stage or while rejecting the
application for modification vide impugned order.
27. The Constitution Bench of this Court in The
University of Mysore and Anr. v. C.D. Govinda Rao & Anr.,
AIR 1965 SC 491 held that "normally the Court should
be slow to interfere with the opinions expressed by the
experts." It would normally be wise and safe for the
Courts to leave the decision to experts who are more
familiar with the problems they face than the Courts
generally can be.
28. This view has consistently been reiterated by this
Court as is evidence from the Judgments in The State of
LPA No.563/2011 page 17 of 19
Bihar & Anr., v. A.K. Mukherjee & Ors., AIR 1975 SC
192; Dalpat Abasaheb Solunke etc. etc. v. Dr. B.S.
Mahajan etc. etc., AIR 1990 SC 434; Central Areca Nut &
Cocoa Marketing & Processing Co-operative Ltd. v.
State of Karnataka & Ors., (1997) 8 SCC 31 : (AIR 1998
SC 2399 : 1998 AIR SCW 2348); and Dental Council of
India v. Subharti K.K.B. Charitable Trust & Anr., (2001)
5 SCC 486: (AIR 2001 SC 2151 : 2001 AIR SCW 1883).
29. However, if the provision of law is to be read or
understood or interpreted, the Court has to play an
important role. [Read: P.M. Bhargava & Ors. v.
University Grants Commission & Anr., AIR 2004 SC
3478 : (2004 AIR SCW 3194) and Rajbir Singh Dalal (Dr.)
v. Chaudhari Devi Lal Univesity, Sirsa & Anr., (2008) 9
SCC 284 : (AIR 2009 SC (Supp) 768 : 2009 AIR SCW
5817)."
15. In State of Himachal Pradesh & Ors. v. Himachal Pradesh Nizi
Vyavsayik Prishikshan Kendra Sangh, (2011) 6 SCC 597 it has been held
thus -
"As rightly pointed out by Mr. Altaf Ahmed, without
any arguments having been heard, without there being
any question raised by any party as to the validity of the
Cabinet decision dated 18-7-2009 and without the same
being in question, or any relief sought for in the writ
petition, the High Court has gone into the said decision
of the Cabinet having taken place after the judgment
was reserved. The decision of the Cabinet generally
ought not to be interfered with in judicial review so
lightly as has been done in the present case. The
quashing of the Cabinet decision without analysing the
pros and cons in the manner seeks to restrict the State‟s
LPA No.563/2011 page 18 of 19
constitutional authority and powers to frame policy
especially in such vital areas like imparting technical
education is not acceptable."
16. In view of the aforesaid analysis, we are unable to persuade
ourselves to accept the submission of learned counsel for the appellant that
the letter-circulars/the policy decisions introducing the new methodology
of CBSE invites the frown of Article 14 of the Constitution of India being
unreasonable and arbitrary. Resultantly, the appeal, being sans substance,
sands dismissed without any order as to costs.
CHIEF JUSTICE
SEPTEMBER 01, 2011 SANJIV KHANNA, J.
kapil LPA No.563/2011 page 19 of 19