Calcutta High Court
Ashoke Saha vs State Of West Bengal & Ors. on 25 February, 1999
Equivalent citations: (1999)2CALLT1(HC)
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. This appeal is directed against a Judgment and order dated 10.12.98 passed by a learned single Judge of this court in W.P. No. 20530 (W) of 1998, whereby and whereunder the writ application filed by the writ-petitioner was dismissed. The writ-petitioner-appellant is the father of a student, Miss. Anima Sana. She appeared in the Secondary Examination in the year 1977 and was placed in Second Division having obtained 56% of the total marks. She was admitted in Baidyabati Charushlla Bose Balika Vidyalaya in Class XI in Science stream. She had also been promoted to Class XII. When her registration form was sent to the second respondent, the same was rejected, inter alia, on the ground that she was not qualified to be admitted. The learned trial Judge having considered the contentions raised on behalf of the parties had come to the conclusion that the daughter of the writ-petitioner-appellant having not fulfilled the eligibility criteria for getting admission in the Science stream, had rightly been refused by the second respondent to appear at the examination.
2. Mr. Basu Mallick, learned counsel appearing on behalf of the appellant has, inter alia, raised three questions in support of this appeal. The learned counsel submits that the daughter of the appellant cannot be said lo be aware of regulation and it was for the school authorities lo see that she gets admission in proper courses to which she was entitled to. Mr. Basu Mallick would urge that having admitted and promoted the appellant, the School authorities and consequently, the second respondent are estopped and precluded from placing an embargo in the matter of her appearance at the examination. The learned counsel has submitted that in terms of Regulation 2(c) (i) of the West Bengal Council of Higer Secondary Education (Examination) Regulations, 1982, the Council having power to condone or make exemption, it is a fit case in which such a power ought to have been exercised. The learned counsel submits that in terms of Regulation 14 of the West Bengal Council of Higher Secondary Education (Admission and Allied Matters) Regulations. 1987, the minimum marks having been prescribed as 45%, it was for the school authorities to see that the petitioner was not admitted and fn any event, permitted to change the elective subject in terms of Regulation 12. According to the learned counsel, the daughter of the petitioner cannot suffer owing to latches and negligence on the part of the school authorities. Strong reliance in this connection has been placed on Shri Krishan v. The Kurukshetra University , Dr. Afrs. Sheela Ashok Patwardhan v. The Dean. Dr. V.M. Medical College, Solarpur & Ors. reported in AIR 1989 SC 383, Sanatan Gauda v. Berhampur University & Ore. and Sk. Abdul Rahim v. Judhisthir Rout reported in 1997(1) CLJ 143.
3. Mr. Chatterjee, learned counsel appearing on behalf of the second respondent on the other hand, submitted that the matter relating to admission in Class XI being guided by a statutory regulation no pupil could be admitted to Class XI who does not fulfil the requisite criteria. The learned counsel submits that in the writ application it was not pleaded that the form for registration of the candidate was accompanied by the prescribed fees. It was pointed out that in terms of the Rules, such form for registration should be filed in the month of January and not later then the month of July of the relevant year; whereas in the instant case the form for registration of the writ-petitioner-appellant was sent in September and the same had been refused in that month Itself, which would go to show that there was no delay and/or latches on the part of his client. The learned counsel submits that the third proviso appended to Regulation 2{c) (i) of the Examination Regulations, 1982 cannot be said to have any application in the Instant case Inasmuch as the power to condone or make exemption by the council is referable to the condition referred to in the said provision and not in respect of a pupil who was not registered at all. Mr. Chatterjee. submits that the court is not to be guided by misplaced sympathy and in support of the said contention, strong reliance has been placed on Guru Nanak Dev University v. Parminder Kr. Bansal and Ors. .
4. Regulation 10 deals with the registration of students which reads thus:--
"All students admitted into Class XI of a recognised Institution should immediately apply in the prescribed form for registration of their names with the Council on payment of the requisite registration fee through the Head of the same fnstltutlion. Students migrating from other States should pay migration fee. Cases of registration are to be submitted in the prescribed form duly filled in and countersigned with the usual fee of Rs. 5.00 latest by the 28th February of the year in which a student is in Class XL Under exceptional circumstances registration form shall be accepted till the 3Ist July of the year in which a student is in Class XII provided a fine of Re. 1.00 is paid for each such form. The Council reserves the right to extend this date in exceptional circumstances on the specific declarations of the Head of the institutions. The Heads of the Institutions are to submit registration forms in two instalments. One by the 28th February of the year in which the students are in Class XI and the other by the 31st July of the year in which the students are in Class XII. (Fees shall be deposited in the manner provided at the bottom of registration form)."
6. Regulation 14 as it originally stood provided that no student shall be admitted in the Science stream unless the combined aggregate score in physical science, life science and mathematics is not less than 45%. The said regulation was, however, substituted by Notification dated 8.7.92, relevant portion whereof reads thus:--
"In order to be eligible to take following elective subjects at Higher Secondary Level the student must obtain a minimum percentage of marks in the corresponding subject in the equivalent examination (i.e. M.P. or its equivalent) as noted below:--
Higher Secondary Subjects.
Minimum Marks to be obtained in Madhyamik or equivalent examination Mathematics Statistics.
34% Business Economics including Business Mathematics.
34% Biological Science, Zoology, 34% in Life Science Bottany, Physiology, Physics and/or Chemistry 34% in Physical Science Geography 34% in Geography".
6. The regulation as noticed hereinbefore leave no manner of doubt whatsover that the same is mandatory in character. The proviso appended to Regulation 14 as it originally stood provides for a condition precedent for admission of a student in a particular stream. It is true that in terms of Regulation 12, a change in the elective subject may be applied for, but the same can be done only in the event conditions precedent therefor are fulfilled Regulation 12 of the West Bengal Council of Higher Secondary Education (Admission and Allied Matters) Regulations 1987, reads thus :--
"12. Change of Elective Subjects. A student may be allowed to change any elective subject(s) offered by him/her at the time of admission in accordance with the subject combinations stated in Regulation 6(b) in Class XI only within a period of 3 months from the date of admision or within the 31st December of the year whichever is earlier if the Head of the Institution is satisfied with the reasons therefor.
The Council may, however, allow change of elective subject(s) to a student if his/her performance in the said subject(s) at the annual examination at the end of Class XI is reported by the Head of the Institution within a month to be very unsatisfactory.
Provided, however, the said pupil shall have to prosecute a regular course of studies again from Class XI :
Provided further that an unsuccessful candidate of Higher Secondary Examination shall not be allowed readmission into an Institution but may be permitted to appear as external candidate with non-laboratory based subjects on fulfilment of other requisites prescribed for the purpose."
7. It is not the case of the appellant that his daughter has opted for change of the elective subject. The power of the Council to change the elective subject as provided for in the said regulation clearly shows that the same would be permissible if the performance of the student in the said subject at the annual examination at the end of Class XI is reported by the Head of the Institution within a month to be very unsatisfactory. The proviso appended to the aforementioned provision clearly mandates that in the event such change in the elective subject is allowed by the Council, the concerned pupil shall have to prosecute a regular course of studies again from Class XI. The question which arises for consideration is as to whether Regulation 14 is an essential condition or not. Once it is held that the said provision contains an essential condition and the concerned authority had no jurisdcition or power to make any exception/exemption in relation thereto, it must be held that before a pupil is admitted to a particular class he must fulfil the conditions precedently laid down therefor.
8. Having considered the phraseology used in Regulation 14 of the 1987 Regulations, we are of the opinion that as the same provides for eligibility of a candidate for offering the same subject as mentioned therein, the same is imperative in character. If the petitioner-appellant had been admitted by the school authorities wrongly, the rule of estoppel shall not apply as against the second respondent herein. The second respondent is a creature of the statute. It is bound to act within the four corners of the statute and only in the event it has the power to make any condonation and/or exemption, adhering to the conditions laid down under the Regulations, it has no other option but to pass an order in terms of the statute.
9. In this view of the matter, we do not find any infirmity in the judgment passed by the learned trial Judge.
10. So far as the registration of the student is concerned, the same is governed by the Regulation 10, which reads thus:--
"10. Registration of Students.--All students admitted into Class XI of a recognised institution should immediately apply in the prescribed form for registration of their names with the Council on payment of the requisite registration fee through the Head of the same institution, students migrating from other States should pay migration fee. Cases of registration are to be submitted in the prescribed form duly filled in and countersigned with the usual fee of Rs. 5.00 latest by the 28th February of the year in which a student is in Class XI. Under exceptional cirmustances registration form shall be accepted til! the 31st July of the year in which a student is in Class XII provided a fine of Re. 1.00 is paid for each such form. The Council reserves the right to extend this date in exceptional circumstances on the specific declarations of the Head of the Institutions. The Head of the Institution are to submit registration forms in two instalments--One by 28th February of the year in which the students are in Class XI and the other by the 31st July of the year in which the students are in Class XII. (Fees shall be deposited in the manner provided at the bottom of registration form)."
11. The said regulation is procedural in nature. However, keeping in view the fact that Regulation 2(c) (1) of the Examination Regualtlon. 1982, clearly mandates that the first condition for being a regular candidate would mean a pupil registered by the Council is clearly a pointer to the fact that before a pupil can be permitted to appear in examination held by the second respondent as regular candidate, he/she must be registered. The respondent No. 2 on the face of Regulation 2(c) (I) cannot invoke its power of condonation of making an exception as provided for in the third proviso appended to in relation to registration of the candidate. As noticed hereinbefore, Regulation 10 clearly provides for mode, manner and time during which the application for registration should be made. There, of course, exists a provision for payment of late fine, but the same does not mean that it has any power to extend the time beyond 31 st July of the year of which a student, who is in Class XII, would file such an application, which itself was subject to the condition that a fine as prescribed be paid. The power of condonation or maing exemption as provided for in Regulation 2(c)(!) of the Examination Regulation. 1982 upon proper construction thereof would be that the same applies in relation to a candidate (1) he is taken admission Into Class XI within the period of three years from the date of his passing last qualifying examination; (2) attendance in Classes XI and XII is not less than 75% which as accepted at the Bar has now been amended to the extent that the power of exemption of Council is limited only to the 50% of the attendance. Thus essential conditions of being a regular candidate cannot be waived. In any event, no application for condonation or making exemption had been filed nor the Council has been asked to exercise its discretion in terms of third proviso appended to Regulation 2(c)(i) of 1982 Examination Regulations.
12. In Shri Krishan v. The Kurukshetra University the Supreme Court found that the lapses were on the part of the University authorities. The students were permitted to appear at the examination and it was in that situation held that he could not have been refused to be admitted subsequently for any infirmity which should have been looked Into for giving candidate permission to appear. The said decision has been distinguished by the Supreme Court as also by other High Courts in many other cases. In a decision the apex court held that the blame for wrongful admission squarely lay upon Engineering Colleges which granted admission to the students. However, in that case there was no such provision prescribing eligibility which was imparatlve in nature. In the Instant case the petitioner admittedly had not complied with the mandatory provision of the regulations. In Dr. Afrs. Sheela Ashok Patwardhan v. The Dean. Dr. V.M. Medical College, Solarpur & Ors. reported in AIR 1989 SC 383, a supernumerary post was specifically created but despite the same when an application for admission was filed, the same had not been considered. It had not been disputed in the said case that the appellant therein had all the requisite qualifications for admission to post-graduate degree. In Sanatan Gouda v. Berhampur University , again a candidate was allowed to appear at pre-Law and intermediate Law examinations but the result was not declared. Sharma, J. as the Hon'ble the Chief Justice of India then was, however, noticed:--
"The Principal wrongly assured the University authorities that he had verified the position and that all the candidates were eligible. In these circumstances, the argument is that the appellant cannot take advantage of the fact that the University allowed him to appear at the examination. I am afraid, the stand of the respondent cannot be accepted as correct. From the letters of the University it is clear it was not depending upon the opinion of the Principal and had decided to verify the situation for Itself. In that situation it cannot punish the student for the negligence of the Principal or the University authorities. It is Important to appreciate that the appellant cannot be accused of making any false statement or suppressing any relevant fact before anybody. He had produced his marks-sheet before the College authority with his application for admission and cannot be accused of any fraud or misrepresentation. The Interpretation of the rule on the basis of which the University asserts that the appellant was not eligible for admission is challenged by the appellant and is not accepted by the College and my learned Brother accepts the construction suggested by him as corrects. In such a situation evern assuming the construction of the rule as attempted by the University as correct, the Principal cannot be condemned for reconmmending the candidature oPthe appelant for the examination in question. It was the bounden duty of the University to have scrutinised the matter throughly before permitting the appellant to appear at the examination and not having done so it cannot refuse to publish his results."
13. In the instant case the respondent No, 2 had pointed out the defect as soon as the matter was brought to its notice. It may be noticed that Sawant, J. also in that case held that in view of the regulation 10 framed under Chapter VIII of the Berhampur University observed :--
"Even though, therefore, for admission to the Law course there is no requirement of any particular marks for postgraduate students like the appellant and the appellant is entitled to be admitted under Regulation I in Chapter VH1 of the said Regulations quoted earlier, the appellant satisfies the other qualification as well, viz. he has passed the M.A. examination with 36 per cent in the aggregate deducting 13 marks in one of the papers and Is, therefore, duly qualified to be admitted to the Law course."
14. The said decision therefore, is also distinguishable on facts. On the other hand there are series of decisions wherein the Supreme Court has clearly laid down the law that a pupil who is not entitled to appear in the examination should not be allowed to do so in violation of the statutory regulation. Reference in this connection, may be made to A.P. Christan Medical Educational Society v. Government of A.P. reported in 1986(2) SCC 677; State of T.N. v. St. Joseph Teachers' Training Institute reported in 1991 (3) SCC 37: State of Maharashtra v. Vikas Sahebmo Roundaie ; Central Board of Secondary Education v. Nlkhll Gulatl ; Central Board of Secondary Education v. Suntl Kumar & Ors. . In a decision reported in 1997(1) CLJ 143. a Division Bench of this court was considering a matter relating to the right of a person to lake admission and not with the question raised therein. In this jurisdiction also a Divsion Bench of this court in Central Board of Secondary Education and Ors. v, Adarsh Kumar Sedhwarayar & Ors. reported in 1998 (2) CHN 61 upon considering the aforementioned decision as also the decision of the apex court in Guru Nanak Dev University v. Parminder Kumar Bansal & Anr. as also other decisions held:--
"It is beyond any dispute that the said Park Point School was not affiliated with the appellant. The writ petitioner might have taken admission under a misconception but it is beyond any cavil of doubt that unless the statute permits appearance of students as private candidates they cannot be permitted to do so."
15. The Bench further noticed--
"In life Insurance Corporation of India v. Mrs. Asha Ramchandra Ambekar & Anr. , the law has been laid down in the following terms :
"Thus apart from the directions "as to appointment on compassionate grounds being against statutory provisions, such direction does not take note of this fact. Whatever it may be the court should not have directed the appointment on compassionate grounds. The jurisdiction under mandamus cannot be exercised in that fashion."
"In G. Kalyan Sundaram v. U.Co. Bank & Anr. reported in CLT 1995(2) HC 201, I had observed that in the fact of that case even sympathy has no role to play and in that connection noticed:
In Latham v. Richard Johnson & Nephew Ltd. reported in 1911-13 AER (reprint) page 117, Farwell L.J. observed-
"We must be very careful not to allow our sympathy sentiment is a dangerous will Or the wisp to take as a guide in the search for legal principles.
"In the State of Tamil Nadu & Ors. v. St. Joseph Teachers 'Training College, the apex court observed that court cannot grant relief on humanitarian ground contrary to law."
16. Upon considering the provisions of the relevant regulations, court having found that the petitioners therein did not come within the purview of the said Regulations, the writ applications filed by them were directed to be dismissed.
17. For the reasons aforementioned, there is no merit in this appeal which is, accordingly, dismissed; but in the facts and circumstances of this case, there will be no order as to costs. However, the second respondent may take steps to register the appellant in accordance with law.
Xerox certified copy of this order, if applied for urgently, shall be given on priority basis.
S.N. Bhattacharya, J.
18. I agree.
19. Appeal dismissed