Gujarat High Court
Pandya Harsh vs Examination Secretary on 17 June, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/SCA/14325/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14325 of 2013
With
SPECIAL CIVIL APPLICATION NO. 14736 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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PANDYA HARSH....Petitioner(s)
Versus
EXAMINATION SECRETARY....Respondent(s)
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Appearance:
MR JV JAPEE, ADVOCATE for the Petitioner in SCA No.14325 of 2013
MR SN BAROT, ADVOCATE for the Petitioner in SCA No.14736 of 2013
MR AD OZA, ADVOCATE for the Respondents in SCAs No.14325 of 2013 and
14736 of 2013
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Page 1 of 38
C/SCA/14325/2013 JUDGMENT
Date : 17/06/2014
ORAL JUDGMENT
1. Rule. Mr. A. D. Oza, learned advocate waives service of notice of rule on behalf of the respondent - Board in both the petitions.
2. Since common questions of fact and law are involved in both these petitions, the same were taken up for hearing together and are disposed of by this common judgement.
3. By these petitions under Article 226 of the Constitution of India, the petitioner seeks the following substantive reliefs :
Special Civil Application No.14325 of 2013:
"11. The petitioner therefore prays that:
[a] YOUR LORDSHIPS be pleased to issue the writ of mandamus or any other appropriate writ, order or direction and be pleased to declare the result of the petitioner for HSC examination on the basis of the average marks secured by the petitioner in each subject in 3 semester examinations and one supplementary examination in lieu of his absence in 2 nd semester examination and be further pleased to declare the petitioner pass as the petitioner has secured more than average 33 marks in each in the aforesaid 4 examinations including one supplementary Page 2 of 38 C/SCA/14325/2013 JUDGMENT examination."
Special Civil Application No.14736 of 2013 :
"8. The petitioner, therefore, prays that:
[A] Your Lordships be pleased to issue a writ of certiorari, or any other appropriate writ, order and/or direction and be pleased to quash and set aside the result declared by respondent No.2, at ANNEXURE :H, by taking into account only the result of supplementary examination and further be pleased to direct the respondent No.2 to declare the result of present petitioner as per the prevailing policy i.e. "PASS" as per taking into account all 4 semester examination in which present petitioner appear, and, further be pleased to direct the respondent No.2 to award a "DEGREE CERTIFICATE" and issue "FINAL COMBINED MARK SHEET" to present petitioner."
4. The facts relating to Special Civil Application No.14325 of 2013 are that the petitioner (hereinafter referred to as "the first petitioner") had passed the Secondary School Certificate Examination held in March 2011 with 90.54 percentile rank. He, thereafter, opted for science stream in the 11 th and 12th standard. The petitioner was required to clear two semesters in the 11th standard and two semesters in the 12 th standard. In the aggregate, the first petitioner was required to clear four semesters for passing the Higher Secondary Certificate Examination. It appears that the petitioner had suffered serious complications in his eyes and had to undergo eye surgery at Page 3 of 38 C/SCA/14325/2013 JUDGMENT the time when the second semester examination of the 11 th standard was taken and therefore, could not appear in the said examination. Consequently, in the mark sheet for the second semester examination held in April, 2012, the petitioner was shown as absent in all the subjects. He, thereafter, appeared in the third semester examination of 12th standard held in October, 2012 and had cleared the said semester examination having secured C1 grade. Thereafter he appeared in the fourth semester examination held in March, 2013 and cleared the said examination. The petitioner received a combined mark sheet for all the four semesters after the fourth semester examination held in March, 2013. Since the petitioner could not appear in the second semester examination, his HSC result was shown as withheld in the combined mark sheet. The petitioner, thereafter, cleared the Gujarat Common Entrance Test, 2013 with 95.19% and also the National Eligibility cum Entrance Test with 60.3620%. He, thereafter, appeared in the supplementary examination held in July, 2013 in lieu of his absence in the second semester examination. However, in some of the subjects of the supplementary examination, the marks secured by the petitioner were less than the qualifying marks, and hence, his result for Higher Secondary Certificate Examination was not declared and continued to be withheld. The petitioner was asked to appear in the next supplementary examination to be held in 2014 as he had secured less than the qualifying marks in the supplementary examination in some of the subjects.
4.1 It is the case of the petitioner that the respondent Board was not justified in withholding his result for Higher Secondary School Certificate Examination on the ground that in his Page 4 of 38 C/SCA/14325/2013 JUDGMENT supplementary examination in particular subjects, he has not scored qualifying marks, ignoring the result secured by him in the third semester examinations cleared by the petitioner earlier. According to the petitioner, the respondent is required to consider the average marks in each subject in the aforesaid four examinations and if so considered, the petitioner would be declared pass. It is in the aforesaid backdrop that the petitioner has approached this court seeking the relief noted hereinabove.
Special Civil Application No.14736 of 2013
5. The petitioner (hereinafter referred to as "the second petitioner") appeared in the first semester examination of 11 th standard in October, 2011 and obtained 430 marks out of 650 marks. The petitioner appeared in the second semester examination of 11th standard conducted in April, 2012 and obtained 390 marks out of 650 marks. He passed both the semester examinations obtaining Grade-D (33%) in each subject. It appears that as he was suffering from dengue fever, the petitioner was admitted in the hospital and was not in a position to appear in the third semester examination held in October, 2012 and therefore, he came to be declared absent in the third examination. The petitioner, thereafter, appeared in the fourth semester examination and obtained 279 marks out of 650 marks. The petitioner was given a final mark sheet; however, his result came to be withheld due to non- appearance in the third semester examination. He was, therefore, required to appear in the supplementary examination. In the supplementary examination, the petitioner obtained 159 marks out of 500 marks. According to the Page 5 of 38 C/SCA/14325/2013 JUDGMENT petitioner, the respondent ought to have declared his result by considering the marks obtained by him in each subject in all the four examinations in which he had appeared. However, the respondent declared the result of the supplementary examination alone and declared that the petitioner "Needs Improvement", that is, he has failed. The petitioner approached the Engineering College for admission as he had obtained 132 marks (average 33 marks in each subjects in all four semester examinations in which he had appeared). However, since he was not declared pass, he is not in a position to get the admission in the said Engineering College.
5.1 It is the case of the petitioner that the respondent after conducting the fourth semester examination and before taking the supplementary examination, declared the results of students who appeared in all four semester examinations and in the result of those students, the marks obtained in all the four semester examinations have been taken into consideration and as per the prevailing policy, those students who obtained Grade-D, that is, 132 marks (average 33 marks) or passed in all the subjects, were declared pass and were awarded degree certificates. Whereas in the case of the petitioner, the result of the supplementary examination has been taken into consideration separately and he has been declared failed, that is, "Needs Improvement". It is the case of the petitioner that the average of the marks obtained by him in each subject in all the four semesters in which he had appeared ought to have been taken into consideration. It is in these circumstances that the petitioner has approached this court by way of the present petition seeking the relief noted hereinabove.
Page 6 of 38C/SCA/14325/2013 JUDGMENT
6. Mr. J. V. Japee, learned advocate appearing for the first petitioner, submitted that in all the first petitioner had appeared in four examinations, viz. the first, third and fourth semester examinations held by the respondent Board as well as one supplementary examination in lieu of his absence in the second semester examination. As per the rules and the circulars issued in this regard, the respondent is required to consider the average marks obtained by the petitioner in each subject in the aforesaid four examinations. The petitioner has secured more than the required average 33 marks in each subject in the aforesaid four examinations and therefore, the respondent is required to declare his result for the Higher Secondary Certificate Examination which was withheld due to his absence in the second semester examination. It was argued that the respondent cannot consider the result of the supplementary examination in isolation, ignoring his results in the three semester examinations already cleared by him. It was submitted that the result of the supplementary examination should be treated on a par with the result of the semester examinations and should be taken into consideration in a similar manner as the results of the semester examination. That the result of the supplementary examination cannot be treated in isolation and the respondents are required to apply the rule of average.
6.1 It was submitted that by virtue of the circular dated 27.5.2013 the board had given two options to the absentee candidates, viz. they can either appear in the examination of the subjects of a particular semester in which they had remained absent along with the examination of the next Page 7 of 38 C/SCA/14325/2013 JUDGMENT semester or they can appear in the supplementary examination. It was submitted that the petitioner was permitted to appear in the supplementary examination held in July 2013 as per the above circular in lieu of his absence in the 2nd semester examination. The petitioner has accordingly appeared in three semester examinations and one supplementary examination. On an average, the petitioner has secured more than 33% marks in each subject as per the statement annexed along with the rejoinder. Therefore, by applying the rule of average contained in the Government Resolution dated 07.09.2012, the petitioner deserves to be declared pass in the HSC Examination. However, the Board has wrongfully withheld the result on the ground that the petitioner has secured less than 33 marks in three subjects in the supplementary examination. It was argued that the result of the supplementary examination cannot be considered in isolation ignoring the result of the three semester examinations cleared by the petitioner.
6.2 It was urged that when the Board has given two options which are alternative to each other, both the options are required to be treated equally. The Board cannot refuse to apply the rule of average for supplementary examination when admittedly the Board has applied the rule of average in relation to the other option of appearing in the next semester examination in lieu of absence in a particular semester examination. It was contended that the Board cannot give discriminatory treatment between two categories of similarly situated students. It was emphatically argued that the students who appear in the supplementary examination for their absence in a particular examination are similarly situated to Page 8 of 38 C/SCA/14325/2013 JUDGMENT the students who appear in the semester examination for their absence in a particular semester. Therefore, both the categories of students are required to be given equal treatment in consonance with Article 14 of the Constitution of India. Accordingly, the rule of average is required to be applied to both the categories of students. If the rule of average is applied to one category and not applied to another category, there will be a clear infringement of Article 14 of the Constitution of India and would amount to hostile discrimination between two sets of students.
6.3 It was urged that this being the first two years of the semester system, there is no clarity in the policy and therefore, the rules and circulars are required to be interpreted in consonance with Article 14 of the Constitution and also in furtherance of the academic interest of the students.
6.4 Next it was submitted that if the result of the supplementary examination is treated in isolation ignoring the results of the semester examinations, it would lead to absurd and anomalous situations. For instance, if a candidate secures 25, 25 and 26 marks in a particular subject in three semesters and in one semester he remains absent and thereafter, he secures 33 marks in that subject in supplementary examination, if the stand taken by the Board is accepted, then he is required to be declared pass in that subject notwithstanding his poor result in the other three semester examinations. Thus, he will be unduly benefitted by not applying the rule of average. On the other hand, a student who secures aggregate 132 marks (average 33%) or more will not Page 9 of 38 C/SCA/14325/2013 JUDGMENT be declared pass merely because he secures less than 33 marks in the supplementary examination.
6.5 It was urged that in the present case, the academic interest of the student deserves to be protected when it is an admitted position that on account of the introduction of the semester system for the first time, there was a lot of confusion and misconception among the students about the implementation of the policy. There was lack of proper guidance to the students by the schools and the Board and the students were also in the dark about the various circulars issued from time to time. In these circumstances, the Board is required to adopt a practical and pragmatic approach by declaring the results of at least those students who get an average of 33% marks by appearing in the supplementary examination in lieu of their absence in a particular semester examination.
6.6 It was vehemently argued that clause (1) of the circular dated 27.05.2013 which permits a student to appear in the supplementary examination in lieu of his absence in a particular semester examination, does not lay down any mandatory rule that only the result of the supplementary examination is required to be considered. The said clause says that the result of supplementary examination is required to be taken into consideration, and as a necessary corollary, the result of the supplementary examination is required to be taken into consideration along with the result of the other three examinations. It was submitted that insofar as clause (3) is concerned, it is not applicable to the present petitioner and Page 10 of 38 C/SCA/14325/2013 JUDGMENT would apply only to those students who do not get aggregate 132 marks even after appearing in four semester examinations. In case of those students, the result of the supplementary examination only can be considered because it is not possible to apply the rule of average in respect of the said students who have appeared in four semester examinations and one additional supplementary examination.
6.7 It was urged that in cases like the petitioner and other students who have not appeared in four semester examinations, the supplementary examination is not in lieu of any examination in which they have appeared earlier and hence, the rule of average is required to be applied in their cases. It was submitted that in the first category as well as in the second category provided in the circular dated 27.05.2013, the students are similarly situated inasmuch as, in one case where a student opts to appear in the supplementary examination when he has remained absent in any subject and in the second case, where a student opts to appear in the semester examination where he was absent in one or more subjects. Thus, in both the said categories, the rule of average is required to be applied, otherwise the same would be likely to be hit by Article 14 of the Constitution of India. It was submitted that two sets of students, namely, the students who opt to appear in supplementary examination and those who opt to appear in semester examination are similarly situated and if the rule of average is applied in case of students who appear in the semester examination and not in case of supplementary examination, there is an infringement of their rights under Article 14 of the Constitution of India. Therefore, both the first and second categories of students contemplated Page 11 of 38 C/SCA/14325/2013 JUDGMENT under circular dated 27.05.2013 are required to be treated on a par and the rule of average is to be applied in their case. It was, accordingly, submitted that the respondent Board was, therefore, not justified in not considering the result of the supplementary examination of the petitioner in isolation without aggregating the marks along with the marks obtained in the other semester examinations.
7. Mr. S. N. Barot, learned advocate for the second petitioner reiterated the submissions advanced by Mr. J.V. Japee, learned counsel for the first petitioner. He further submitted that the petitioner had appeared in the first and second semester examinations and obtained D-Grade, that is, 33 marks in all the subjects. Subsequently, the Board, before conducting the third semester examination, came out with another circular dated 07.09.2012 considering the earlier circular dated 11.08.2012 wherein the criteria regarding declaring a student as having passed was changed and it was provided that the average of the total marks obtained in each subject in all four semesters will be taken into account. In other words, if a student obtains minimum 132 marks in all the subjects (aggregate of four semesters) that is, he secures an average of 33 marks in all the subjects, he will be granted Grade-D and will be declared as having passed. It was pointed out that by virtue of clause (5) of the said circular the only option available to the second petitioner was to appear in the supplementary examination which was to be held immediately after the result of the fourth semester. It was argued that at the relevant point of time, while issuing the circular dated 07.09.2012, the second respondent failed to clarify or to make specific rules to the effect that those students who did not Page 12 of 38 C/SCA/14325/2013 JUDGMENT appear in the third or fourth semester examination would be required to obtain 33 marks in the supplementary examination or that the students who were absent in the third or fourth semester examination are also required to obtain 33 marks in the supplementary examination. It was submitted that therefore, the only option which was open to the petitioner was to appear in the supplementary examination in lieu of his absence in the third semester examination. It was pointed out that the second respondent, by another circular dated 27.05.2013, has come out with the same criteria that if a student fails to appear in the third or fourth semester examination, then that student will have to appear in the supplementary examination. However, the second respondent once again failed to clarify that those students who were absent in the third or fourth semester examinations and thereafter appeared in the supplementary examination, are required to obtain 33 marks. Therefore, the rule of average as envisaged in the first resolution dated 07.09.2012 would also apply in the case of the petitioner because the resolution dated 27.05.2013 does not specifically mention that the students who appear in the supplementary examination after having remained absent in the third or fourth semester examinations are required to obtain 33 marks in each subject in the supplementary examination. It was argued that the second respondent has failed to clarify as to under which the resolution or regulation, a candidate who remained absent in the third semester examination is required to obtain 33 marks in each subject of supplementary examination and that in the absence of any specific rule in this regard, the resolution dated 07.09.2012 would apply and the system of considering the average marks would be applicable.
Page 13 of 38C/SCA/14325/2013 JUDGMENT 7.1 Referring to the affidavit-in-reply filed by the respondent - Board, it was submitted that it is the case of the respondent that the petitioner herein had chosen to appear in the supplementary examination instead of semester examination. The respondent Board has stated in its affidavit-in-reply that the petitioner has chosen the option of appearing in the supplementary examination and was required to obtain 33 marks in each subject of such examination; however, there is no reference to the circular or rule, which requires the petitioner to obtain 33 marks in such examination. It was argued that the second respondent has taken shelter behind the circular dated 27th May 2013 while stating that the petitioner is required to obtain 33 marks in the supplementary examination. However, the said circular would apply in case of those students who appear in all four semester examinations and fail to obtain an average of 33 marks in each subject. In the present case, the petitioner did not appear in all the four semester examinations and hence, clause (c) of the said circular would not be applicable to the present petitioner. It was submitted that the insistence on the part of the Board that the petitioner should have obtained 33 marks in the supplementary examination like the category of students who have appeared in the four semester examinations and have failed to obtain a total of 132 marks in each subject, results in hostile discrimination and injustice to the present petitioner because the circular dated 27.05.2013 would be applicable to those students who appeared in all four semester examinations and failed to obtain 132 marks, whereas the second petitioner has only appeared in the first, second and fourth semester examinations and has appeared in the Page 14 of 38 C/SCA/14325/2013 JUDGMENT supplementary examination in lieu of the third semester examination. That the petitioner having appeared in a total of only four examinations, viz. three semester examination and one supplementary examination, the average marks obtained by him in each subject are required to be taken into consideration. It was, accordingly, urged that the marks obtained by the petitioner in the supplementary examination are required to be aggregated with the marks obtained in the semester examinations and the average is required to be taken into consideration.
7.2 Mr. Barot further submitted that a student named Patel Parth Mahendrakumar obtained 16 marks in Mathematics, 25 marks in Chemistry and 22 marks in Physics in the second semester examination, viz., below 33 marks, which was prior to the coming into force of the circular dated 07.09.2012 at which point of time it was mandatory to get 33 marks in each subject in each semester. In the fourth semester examination he had obtained 19 marks in Mathematics and 24 marks in English. If such student is given the benefit of the circular dated 07.09.2012, viz. despite not having obtained the mandatory 33 marks in the second semester only because he appeared in all the four semester examinations, then in the case of present petitioner who had appeared in the first, second and fourth semester examinations and had obtained an average of above 33 marks/132 marks in the said examinations and thereafter in lieu of his absence in the third semester examination had taken the supplementary examination in terms of the resolution dated 07.09.2012 which provided that in case a student had remained absent in any subject/subjects in the third or fourth semester examination he Page 15 of 38 C/SCA/14325/2013 JUDGMENT can appear in the supplementary examination held after the fourth semester examination, in the absence of any specific rule regarding obtaining passing marks in the supplementary examination, his average marks obtained in all the four examinations including the supplementary examination ought to have been taken into consideration. It was contended that clause (1) of the circular dated 07.09.2012 would apply in all cases where a student has remained absent in a semester examination and in lieu thereof had appeared in the supplementary examination and such student would be entitled to application of the principle of average. According to the learned counsel, in terms of clause (1) of the above circular, a student is required to secure an aggregate of 132 marks and average of 33 marks in each subject in four examinations, irrespective of whether he had appeared in four semester examinations or three semester examinations and one supplementary examination and that clause (1) of the circular would not apply only to those students who have appeared in four examinations and failed in any particular subject/subjects. It was, accordingly, urged that grave discrimination and injustice has been caused to the present petitioner by not applying the principle of average and declaring his result as "Pass" in the absence of a clear cut policy having been formulated by the second respondent- Board.
8 Opposing the petition, Mr. A. D. Oza, learned advocate appearing on behalf of the respondent Board placed reliance upon the averments made in the affidavit-in-reply filed on behalf of the respondent. It was submitted that a student has to appear in all the four semester examinations and is required Page 16 of 38 C/SCA/14325/2013 JUDGMENT to secure the requisite marks for being declared pass whereas, the first petitioner had not appeared in the second semester examination conducted by the Board and has chosen to appear in the supplementary examination which comprises of the course of third and fourth semesters. It was submitted that had the petitioner obtained necessary passing marks in each subject, he would have been declared as having passed, but as he failed to secure the minimum marks required to pass in the examination, that is, 33 marks in each subject, he was not declared as having passed. It was submitted that the principle of average is to be applied in case where a student appears in all the four semesters. Referring to clause (1) of the circular dated 07.09.2012, it was submitted that the average of 33 marks in each subject in each semester stipulated therein means 132 marks in each subject are to be obtained in all four semester examinations. Therefore, the aggregation and averaging of marks in terms of the said circular is to be done only if the concerned student has appeared in all four semester examinations and not otherwise. It was submitted that as the first petitioner has not appeared in four semester examinations, the principle of average is not required to be applied in his case and he was required to secure minimum 33 marks in each subject in the supplementary examination. It was argued that a student who appears in the supplementary examination is not entitled to the benefit of average of 33 marks, that is, a total of 132 marks in each subject in four examinations, when all four examinations are not semester examinations.
8.1 It was pointed out that after the declaration of the results of the second semester examination, several representations Page 17 of 38 C/SCA/14325/2013 JUDGMENT were received by the Board with regard to the semester examination and several modes were suggested by the parents of students. That after receipt of such representations, the Education Committee as well as the Examination Committee of the Board met on 4 th September, 2012 and a decision was taken by the experts in the nature of a policy dated 07.09.2012. It was submitted that the representation made by the petitioner came to be considered in the light of the policies of the Board and that the same came to be rejected by a detailed order dated 04.10.2013. It was urged that the first petitioner having remained absent in the second semester and having chosen the option of appearing in supplementary examination and having not secured a minimum of 33 marks in each subject required for passing, has rightly not been declared as having passed.
8.2 The learned counsel for the respondent Board submitted that the first petitioner had remained absent in the second semester examination which was held in April 2012 and was, therefore, required to appear in the second semester examination in April 2013 along with fourth semester examination as per the policy of semester system dated 11.07.2011, especially clause (5) thereof. He was, therefore, required to fill up the examination form on or before January 2013 for the second semester examination along with fourth semester examination which was held in March 2013. It was pointed out that at that point of time, the circular dated 27.05.2013 was not in existence and furthermore, it is not even the case of the petitioner that under misconception and misunderstanding, he could not appear in the second semester examination at the relevant point of time. It was, accordingly, Page 18 of 38 C/SCA/14325/2013 JUDGMENT urged that the first petitioner was not entitled for the benefit of the eventualities provided in clause (1) of the circular dated 27.05.2013. It was submitted that since the first petitioner was sick in the second semester examination and could not appear in March 2012, he could not even have availed of the benefit of the policy dated 07/09/2012. That even in March/April, 2013, he has not appeared in the second semester examination, which he ought to have appeared in.
8.3 Referring to the circular dated 27th May 2013, it was pointed out that the same prescribes two options as contemplated in clause (1) thereof and having availed the option of appearing in the supplementary examination, it is not open for the petitioner to get the benefit of average 132 marks as the result of supplementary examination is final and admittedly, the petitioner student has not appeared in the second semester examination in terms of clause (2) of the circular dated 27.05.2013. It was pointed out that the policy dated 07.09.2012 was floated for the reason that more than forty thousand students had failed in the second semester examination and with a view to see that such a large number of students do not suffer, more so, this being the first examinations held after the introduction of the semester system, the students were permitted to move ahead to third semester, even though they had not cleared the second semester examination. Accordingly, for the first time, the policy of average has been introduced whereby the students are required to appear in all the four semester examinations and obtain in all a minimum of 132 marks in each subject.
8.4 Mr. Oza further submitted that the result of the fourth Page 19 of 38 C/SCA/14325/2013 JUDGMENT semester examination was declared on 13.05.2013 wherein the results of 562 students who had remained absent in either one or more subjects in any of the semester examinations, were withheld. These facts have been stated in the circular dated 27.05.2013 and it is under these circumstances that the Board had issued the said circular whereby options were given for the year 2013. It was pointed out that the students who did not appear in any semester examination, including the third or fourth semester examinations, had been given the option to appear in the respective semester examination as provided in clause (2) of the said circular dated 27.05.2013 and were also given the option to appear in the supplementary examination for that year only. It was pointed out that it has been specifically provided in the said clause that result will be given on the basis of the marks obtained in the supplementary examination (obtained marks in the concerned subject). Therefore, the students who have availed of the option of appearing in the supplementary examination are not entitled to get the benefit of a total of 132 marks (average of 33 marks) in each subject in terms of the circular dated 07.09.2012.
8.5 It was further submitted that if a student who has appeared in all the four semesters but could not obtain average 33 marks as per clause (1) of Government Resolution dated 07.09.2012, appears in the supplementary examination, then in terms of clause (2) of the said circular, he has to obtain 33 marks out of 100 in each of the subject and if fails to obtain 33 marks in one or more subjects then he has to appear in the supplementary examination held in the succeeding year. It was submitted that a student who does not appear in one out of Page 20 of 38 C/SCA/14325/2013 JUDGMENT the four semester examinations is one step below the student who appears in all the four semesters but fails in one or more subject, and in his case also, the requirement of obtaining 33 marks in the supplementary examination will equally apply and the Board has rightly not applied the principle of average in cases similar to petitioner. It was further submitted that in the all 562 cases, the principle of average has not been applied and in each case the standard applied is that the student has to obtain 33 marks in the supplementary examination. Accordingly, the result of the July 2013 supplementary examination has been declared. It was argued that now after more than ten months of the declaration of result, it would not be feasible to apply any other standard to change the result in any of the cases.
8.5 It was submitted that the Board, after considering the Board's previous resolutions, government resolutions and earlier circulars mentioned in the column of reference, has issued consolidated instructions by a circular dated 17.10.2013 whereby the policy with regard to semester system is synchronized. It was further submitted that in clause (3) of the said circular, provision with regard to supplementary examinations is mentioned. In clause (15), it has been provided that if any of the students did not appear in any of the semester examinations, then he can appear only in the said semester examination as and when the same is held. There is no provision for holding a supplementary examination for the students who did not appear in any one or more subjects in any semester examination.
8.6 In respect of the second petitioner, Mr. Oza was
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submitted that he had not appeared in the third semester examination and hence, as per the rules he was required to appear in the semester examination held thereafter. However, the second petitioner had chosen to avail of the benefit of the circular dated 07.09.2012 and head appeared in the supplementary examination held after the fourth semester examination was over. Hence, since the petitioner had appeared in a supplementary examination and not a semester examination, the marks obtained by him in the supplementary examination could not be clubbed with the marks obtained by him in the three semester examinations for determining the average marks obtained by him in each subject. This being a supplementary examination, the petitioner was required to obtain 33 marks in each subject for the purpose of being declared as having passed and the principle of average would not be attracted..
9. In the backdrop of the facts and contentions noted hereinabove, the sole question that arises for consideration in the present case is as to whether when a student who has remained absent in one or more subjects in a semester examination, subsequently appears in the supplementary examination, he is required to obtain 33 marks in each subject for the purpose of being declared as having passed the examination or whether he is required to obtain a total of 132 marks (average 33 marks) in each subject by taking into consideration the result of all the four examinations, viz. the semester examinations as well as the supplementary examination.
10. It would, therefore, be necessary to examine the relevant Page 22 of 38 C/SCA/14325/2013 JUDGMENT provisions in this regard. Regulation 27 of the Gujarat Secondary and Higher Secondary Certificate Examination Regulations (Amended), 2005 (hereinafter referred to as "the Regulations") makes provision for eligibility of re- examinee/repeater. Sub-regulation (1) thereof provides that a re-examinee means a candidate who has appeared as a regular candidate in the Board examination and such candidate who has failed once again appears in the Board examination shall be treated as a re-examinee. Sub-regulation (2) thereof provides that if a candidate fills in an examination form for appearing in the examination declared by the Board, but does not appear, then in his mark sheet, instead of marking him as absent, he shall be shown as failed (absent-ABF) and in such case, when the candidate again fills the form for appearing in examination, he shall be treated as a re-examinee.
11. The above regulations have been framed in the year 2005 prior to the coming into force of the new semester system of examination. However, the learned counsel for the respondent Board has submitted that no new regulations have been framed and that the old regulations continue to apply even to the present system of examination subject to various instructions/circulars issued by the Board from time to time.
12. Thus, in terms of regulation 27 of the Regulations, a candidate who fills the examination form but does not appear, in his mark sheet, instead of marking him absent, he shall be shown as failed and in such case, when the candidate again fills in the form for appearing in the examination, he is required to be treated as a re-examinee/repeater.
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13. Subsequent to the commencement of the semester system of examination which was introduced for the first time with effect from June 2011, after the first and second semesters were over, the respondent Board issued circular dated 07.09.2012. By the said circular, keeping in view the interest of education as well as the students, without affecting the original system, slight changes were made and certain options were given as below (as translated into English):
(1) Under the semester system, in Standard 11 and Standard 12 of the Science stream, the marks obtained by a student in the relevant subject in all the four semesters shall be aggregated and if the average marks obtained by him are 33 (D Grade or above) or more, then he shall be declared pass in the said subject.
(2) In the subject in which there is need of improvement (namely that marks are less than 33), supplementary examination of such student will be taken immediately after the result of the fourth semester and the question paper of such supplementary examination will be prepared on the basis of the syllabus/textbooks of the third and fourth semester, wherein in the question paper, questions for 50 marks will be multiple choice questions which will be required to be noted on OMR sheet and questions for 50 marks will be of descriptive type.
(3) Not relevant and hence, not reproduced.Page 24 of 38
C/SCA/14325/2013 JUDGMENT (4) Not relevant and hence, not reproduced.
(5) Upon this system coming into force, those students who have studied in the first and second semester and for some valid reason could not appear in the examination and the mark sheet of such student is of "Absent", then such student can along with his current studies in the succeeding year appear in the concerned semester examination. The student who has remained "Absent" in the third and fourth semesters will have to appear in the supplementary examination held after the fourth semester.
(6) Xxx xxxx (7) All the four semester examinations shall be held as per the subjects decided by the Board. The weightage of each semester shall be equal (25%) and accordingly, a common mark sheet and certificate of all the four semesters shall be issued. At the end of each semester, the student will be given a mark sheet of the marks obtained by him.
(8) In the mark sheet given at the end of each semester, against the marks obtained by the student in the concerned subject, the grade in the subject will be given and if the student obtains 33 marks or more in each subject, he will be given a common grade. In case marks are less than 33, then such student will not be given grace marks in the four semesters. But after Page 25 of 38 C/SCA/14325/2013 JUDGMENT completing the four semesters, a common mark sheet will be given, wherein the student will be given grace marks according to the regulations.
Xxx xxx xxx
14. Subsequently, the respondent Board issued another circular dated 27th May, 2013 on the following subject: "For taking supplementary examination of students who have remained absent in the Higher Secondary Certificate Science Stream Semester Examination". The said circular was issued with reference to the circulars dated 11.7.2011 and 7.9.2012. The contents of the circular dd 27.5.2013, as translated into English read thus:
"In the context of the above subject and reference, it is informed that by the circulars at reference 1 and 2 issued under the provisions of the examination regulations whereby instructions giving complete guidance in respect of the semester examination had been issued.
On 13th May, 2013, the results of the fourth semester examination of the science stream came to be declared wherein the results of 562 students came to be withheld. In view of the provisions made in the circular dated 07.09.2012, those students who for some valid reason had not remained present in the first and second semester examinations, and their mark sheets were of "absent", such students along with their current studies were required to appear in such examination in the succeeding year. Those students who had remained absent in the third and fourth semesters were required to Page 26 of 38 C/SCA/14325/2013 JUDGMENT appear in the supplementary examination held after the fourth semester examination.
Despite the aforesaid, certain schools and guardians had submitted that there was a misunderstanding on their part that if someone has remained absent in one or more subjects in a semester and in that subject or subjects he has obtained a total of 132 marks in the remaining semesters, then he is not required to give the examination in the subject in which he had remained absent in the concerned semester, because of which certain students had remained absent in a subject or subjects in the 1st to 4th semester, as a result of which their results had been withheld. Considering the representations it appeared to the office (Board) that the schools had not fully studied the rules and regulations of the Board and when this was the first result of the semester system and certain schools and students due to lack of complete knowledge had committed such mistake, but due to which the year of the students should not be spoiled, the following decision is taken in the interest of the students.
[1] Students who have remained absent in any subject or subjects in the first, second, third or fourth semester, such students along with the students for whom supplementary exams are to be held can appear only in the supplementary examination in the subjects in which they have remained absent and keeping in view the marks obtained by the students in the supplementary examination (the marks obtained in that subject) the Page 27 of 38 C/SCA/14325/2013 JUDGMENT result shall be declared.
[2] Such students who do not wish to appear in the supplementary examination can appear in the semester examination of that subject or subjects which is to be held hereafter and will have to fill in an application as repeater only in the subject or subjects in which he has remained absent.
[3] A student who has not obtained 132 marks (average 33) at the end of the four semesters such student shall appear in the supplementary examination to be held in June/July. If such students do not obtain 33 marks along with grace marks then they may appear in the supplementary examination for such subject/subjects in the next year, that is, the supplementary examination to be held in June/July 2014.
The provision at serial No.1 is made only for the current year and the provision at serial No.3 shall be permanent."
15. During the pendency of the present petition, it appears that pursuant to the representations made by the respective petitioners, the respondent Board vide separate orders dated 04.10.2013, has turned down the representation for the reason that in the semester system, all four semester examinations are compulsory and only if an average of 33 marks or more is obtained in such subject in all four semesters, then the student will be declared "pass"in the subject and in the semester in which the student is absent in any subject/subjects, then there Page 28 of 38 C/SCA/14325/2013 JUDGMENT is a provision for giving examination as and when such semester examinations are held. Supplementary examination is for such students who have appeared in all four semesters and have not obtained average 33 marks. The petitioner had remained absent in the second and had not given the said examination and had given the supplementary examination under the provision made in the circular dated 27.05.2013 which was meant for one year only. However, as per the above provisions there was an option that he can appear in the concerned semester examination to be held thereafter, instead of which he had appeared in the supplementary examination and hence, no injustice had been caused to him by the Board and that he had all the above options.
16. In case of the second petitioner, it has been stated that he had remained absent in the third semester and not given the examination. Hence, in terms of the circular dated 27.05.2013 whereby the provision had been made only for that year, he had appeared in the supplementary examination, however, the said provision was only an alternative and that he could have appeared in the third semester examination to be held thereafter. However, he had appeared in the supplementary examination and hence, his result in the supplementary examination has been declared in accordance with the rules and therefore, no injustice has been caused to him by the Board.
17. On a conjoint reading of regulation 27 of the Regulations with the above circulars, it appears that a candidate, who appears in the semester examination and fails and thereafter appears in the supplementary examination, is treated as a re-
Page 29 of 38C/SCA/14325/2013 JUDGMENT examinee/repeater. Similarly a candidate who fills up the examination form but does not appear and thereafter appears in the subsequent examination is also treated as a re- examinee/repeater. Therefore, under the regulations, both, a candidate who fails and appears in an examination and a candidate who remains absent and thereafter appears in the examination are considered on a par and treated as re- examinees/repeaters. Since the semester system came to be introduced in the year 2011, there were some teething problems, viz. confusion about the marking system. Initially the candidates were required to obtain passing marks (33) in each subject. However, upon completion of two semesters, since the result thereof was very poor, by a circular dated 7.9.2012 certain changes were made so as to mitigate the problems of the students, whereby it was provided that instead of getting 33 marks in each subject at each of the four semester examinations, the students were required to obtain an average of 33 marks in four semesters for the purpose of being declared pass. In case where a student failed to secure an average of 33 marks in four semester examinations, such student was required to appear in the supplementary examination held immediately after the result of the fourth semester. Upon the coming into force of this system, if those students who had studied in the first and second semester but for some valid reason (as in the case of the petitioners) could not appear in the examination and were marked "absent", then such students could along with their current studies appear in the concerned semester in the next succeeding year. In case of students who did not appear in the third or fourth semester, they were required to appear in the supplementary examination held after the fourth semester.
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18. Despite the above arrangement, certain schools and guardians submitted that there was a misunderstanding on their part that if someone has remained absent in one or more subjects in a semester and in that subject or subjects he had obtained a total of 132 marks in the remaining semesters, then he was not required to give the examination in the subject in which he had remained absent in the concerned semester, because of which certain students had remained absent in a subject or subjects in the first to fourth semester examinations, and consequently their results had been withheld. Considering the representation, the Board was of the view that this being the first results of the semester system and the students due to lack of complete knowledge had committed such mistakes, their year should not be spoilt. Accordingly, it was decided that students who had remained absent in any subject/subjects in any of the four semester examinations could appear in the supplementary examination along with students for whom such examinations were held in the subject/subjects in which they had remained absent. It was also provided that such students who did not desire to appear in the supplementary examination could appear in the semester examination of that subject/subjects held thereafter, as repeaters. Therefore, a candidate who had remained absent had two options, either to appear in the supplementary examination or in the semester examinations held thereafter. Students who did not obtain an average of 33 marks in particular subject/subjects in the semester examination were required to appear in the supplementary examination held after the fourth semester, and where they did not obtain 33 marks in the supplementary examinations, they were required to appear in the Page 31 of 38 C/SCA/14325/2013 JUDGMENT supplementary examination held in the next year. Thus, it appears that after four semester examinations there is a supplementary examination which is held for students who have failed to obtain the requisite passing marks in any subject/subjects.
19. Insofar as permitting students who had remained absent in any subject/subjects in a semester examination is concerned, the option to appear in the supplementary examination was by way of a one-time arrangement, only for the year under consideration, it being the first time that semester examinations were being held. Therefore, in the regular course a student who remains absent in any subject/subjects cannot appear in the supplementary examination, but is required to appear, in case he has remained absent in the first and second semester, in the semester examination for the said subject/subjects held thereafter and in case of a student who remains absent in the third and fourth semesters, in the semesters examinations held thereafter. Supplementary examinations are held only for students who have appeared in all the four semester examinations, but have failed to secure the requisite average of 33 marks in each subject.
20. Thus, the scheme of the examination system for the Higher Secondary Certificate Examination is that, in all, a student is required to appear in four semester examinations. In case he remains absent in any subject/subjects in the first or second semester, he can appear in the semester examinations held immediately thereafter along with his current studies. In case, he does not appear any subject or subjects in the third or Page 32 of 38 C/SCA/14325/2013 JUDGMENT fourth semester examinations, he has to appear in the semester examinations held thereafter. The provision for students who had not appeared in all four semester examinations appearing in the supplementary examination was made only for the year under consideration, with a view to alleviate the problems of the students on account of certain confusion that was prevailing on account of this being the first time that the semester system came to be implemented. However, in none of the circulars or provisions has it been provided that the marks obtained in the supplementary examinations will be aggregated with the marks obtained in the three semester examinations and the average thereof will be taken into consideration. On the contrary the circular dated 7.9.2012 clearly says that under the semester system in standard 11 and standard 12 of Science stream, the marks obtained by the student in the relevant subject in all the four semesters shall be aggregated and if the average marks obtained by him are 33 or more then he shall be declared pass in the said subject. Therefore, it is only in case where a student has appeared in all four semester examinations that the aggregate marks obtained by him in each subject are required to be taken into consideration and if he has obtained an average of 33 marks in each subject, he is required to be declared pass. The result of the supplementary examination, even in case of students who had remained absent in any subject/subjects in any of the four semester examinations would be declared keeping in view the marks obtained by such students in the supplementary examination (the marks obtained in that subject) in view of the fact that a supplementary examination cannot be equated with a semester examination. In this regard it may be pertinent to Page 33 of 38 C/SCA/14325/2013 JUDGMENT note that supplementary examinations are a combination of the 3rd and 4th semester syllabus and is not a normal semester examination.
21. Besides, a perusal of the mark-sheet of the petitioner shows that there is a separate column for marks obtained in the supplementary examination and for marks obtained in semester examinations. Therefore, irrespective of whether a student appears in a supplementary examination after having failed in the subject or on account of having remained absent in the examination, the nature of the examination does not change and the student is required to obtain the requisite passing marks in each subject.
22. In case of the first petitioner, under the regulations, he was required to appear in the second semester examination held immediately thereafter along with the current studies in the third and fourth semesters, in which case, the petitioner would have been entitled to application of the principle of average by considering the marks obtained in all the four semester examinations. However, the first petitioner did not appear in the semester examination held immediately thereafter, but after completion of the fourth semester, chose to appear in the supplementary examination which is otherwise meant for students who have failed in an examination, by taking the benefit of the provisions of the circular dated 07.09.2012, whereby as a onetime measure, the students who had remained absent in any subject/subjects in the semester examinations were permitted to appear in the supplementary examination.
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23. As noted hereinabove, under the semester system, the marks obtained in the supplementary examination are to be considered in isolation and are not required to be considered along with the marks obtained in the semester examinations. In other words, the total marks obtained in three semester examinations and a supplementary examination and the average thereof, cannot be taken into consideration as the principle of average which is made applicable to semester examinations does not apply to the marks obtained in a supplementary examination. Therefore, a student is required to obtain the minimum passing marks in each subject in the supplementary examination subject to being given any grace marks in accordance with the rules.
24. In the case of the second petitioner, in view of the regulations, in the ordinary course, he was required to appear in the next semester examination, however, under the circular dated 07.09.2012, various alternatives were provided without affecting the original regulations. Accordingly, the said circular provides that those students who had studied in the first and second semester and for some valid reasons, could not appear in the examination and were marked "absent" in their mark sheet, then such students can, along with their current studies, appear in the concerned semester examination. The students who remained absent in the third or fourth semester, will have to appear in the supplementary examination held after the fourth semester.
25. The circular dated 27.05.2013 with reference to arrangement made vide circular dated 07.09.2012 says that the students who have appeared in any subject or subjects in Page 35 of 38 C/SCA/14325/2013 JUDGMENT the first, second, third or fourth semesters, such students along with the students for whom supplementary examinations are to be held, can appear in the supplementary examination only in the subject in which they have remained absent and keeping in view the marks obtained by the students in the supplementary examinations (marks obtained in that subject), the result shall be declared. The above arrangement was made only with a view to mitigate the difficulties faced by the students on account of introduction of a new system of examination. The same does not override the existing regulations which provide for appearing in four semester examinations. It was, therefore, always permissible for the second petitioner to appear in the fourth semester examination as and when it was held if he wanted to avail of the benefit of the principle of average.
26. In the present case, both the petitioners who have opted to appear in the supplementary examination instead of appearing in the subsequent semester examination for the subjects in which they had remained absent, are bound by the rules applicable to supplementary examinations, namely that, the marks of the supplementary examination are to be considered independently and cannot be aggregated with the marks obtained in the semester examinations to find out as to whether the student concerned has obtained a total of 132 marks (an average of 33 marks) in each of the subjects. As is clear from the circular dated 07.09.2012, the principle of average applies only to the marks obtained in the four semester examinations and hence, the said principle cannot be made applicable in case where a student remains absent in Page 36 of 38 C/SCA/14325/2013 JUDGMENT any of the semester examinations and thereafter, appears in the supplementary examination.
27. The contention that when the Board gives two options which are alternative to each other, both are required to be treated equally cannot be accepted for the reasons stated hereinabove. Moreover, by appearing in the supplementary examination held after the fourth semester examination, the student saves a year. In case he chooses to appear in the semester examination he has to wait till the next semester examination is held. Therefore, when both the examinations are not the same, the question to treating the same equally does not arise. As noticed hereinabove, the only reason that the petitioners were permitted to appear in the supplementary examination was because of the onetime measure introduced by the Board to mitigate the problems faced by students on account of introduction of a new system of examination.
28. In the light of the above discussion, no infirmity can be found in the stand adopted by the respondent Board in the impugned orders dated 04.10.2013 whereby the petitioners' representations for considering the average of the marks obtained by them in the three semester examinations along with the supplementary examination, have been turned down.
29. In the light of the above discussion, the petitions fail and are, accordingly, dismissed. Rule is discharged with no order as to costs.
30. At this stage, Mr. A. D. Oza, learned counsel for the Page 37 of 38 C/SCA/14325/2013 JUDGMENT respondent Board has made a statement to the effect that the petitioners would be permitted to appear in the supplementary examination to be held sometime in the next month.
(HARSHA DEVANI, J.) parmar* Page 38 of 38