Madhya Pradesh High Court
Nirpat Singh vs Madhya Pradesh Madhyamik Shiksha ... on 15 December, 2016
1 WP 8566/16
Nirpat Singh & others Vs. Madhyamik Shiksha Mandal & Anr.
15/12/16
Shri Vivek Khedkar, Advocate for the petitioners in
W.P.No.8566/16.
Shri RBS Tomar, Advocate for the petitioners in
W.P.No.4789/16, W.P.No.5058/16 and W.P.No.4412/16.
Shri J.P.Mishra and Shri Gaurav Mishra, Advocates for the
respondents-Board in all the petitions.
1. This order shall govern disposal of W.P.No.4789/16 (Arti Rajput Vs. Board of Secondary Education), W.P.No.5058/16 (Vinita Devi Vs. Board of Secondary Education) and W.P.No.4412/16 (Koushalya Devi Vs. Board of Secondary Education).
2. For facility of reference, facts are noticed from Writ Petition No.8566/16 which disclose that the petitioners were admitted in D.Ed. (now D.El.Ed.), two years course in July, 2014. In the first year final examination held in July, 2015, petitioners were not allowed to appear on account of non-furnishing of certain necessary documents within specified period of time. This gave rise to the cause of approaching this court in the first round of litigation by filing W.P.No.5030/15 (Virendra Singh & another Vs. Madhya Pradesh Madhyamik Shiksha Mandal Bhopal & another) in which an interim order was passed on 19/11/2015 permitting the petitioners provisionally to appear in the first year supplementary examination which was held in December, 2015. The petitioners appeared in the said examination on the strength of the interim order and thereafter pursued their academic career in second year. However, result of the first year supplementary examination was not declared. The above said writ petition came to be decided by a common order dated 10/3/2016 passed in a bunch of cases with 2 WP 8566/16 Nirpat Singh & others Vs. Madhyamik Shiksha Mandal & Anr.
lead case being W.P.No.3242/15 with following directions:-
"(11) Considering the aforesaid subsequent order of the Apex Court, the Division Bench of this Court at Indore disposed of various writ petitions vide order dated 18/11/2015 in the following manner:
"In view of the above, it is directed that the respondent No.2- Board of Secondary Education shall publish the results of the present petitioners forthwith. With the aforesaid observation and direction, the petitions are partly allowed to the extent herein-above indicated."
(12) Subsequent to passing the aforesaid order by the Division Bench of this Court at Indore, a bunch of writ petitions was considered by the Division Bench of Principal Seat of this Court in Writ petition No.7490/2015 and it is undisputed fact that on taking into consideration the order of the Apex Court and the aforesaid order of this Court, all such writ petitions were disposed of vide order dated 08/12/2015, in the following manner:
"9. Accordingly, keeping in view all these factors, we allow these petitions and in the light of directions issued by Hon'ble Supreme Court and Indore Bench, we dispose of all these petitions with a direction to the respondent Board to publish the result of the students who have participated in the examination forthwith and communicate the same to the students through their institutes.
10. It is also reported that with respect to the students who had participated in the same examination in time and whose results have been declared, and such of the students who have failed in certain subjects and are eligible to participate in supplementary examination, the 3 WP 8566/16 Nirpat Singh & others Vs. Madhyamik Shiksha Mandal & Anr.
supplementary examination are to be held on 14th December, 2015, if any of the student involved in the present petition is declared failed he be permitted to appear in supplementary examination and permitted to fill the forms subject to his fulfilling all the condition to appear in the supplementary examination as per rules.
11. With the aforesaid, this petition stands allowed and disposed of. No order on costs."
(13) Subsequent to passing the aforesaid order by the Division Bench of Principal Seat of this Court again review petitions in respect of aforesaid writ petitions filed to review the order dated 08/12/2015 were considered and decided vide order dated 14/01/2016 and the same were disposed of in the following manner:
"4. Having considered the submissions made by Shri P.K.Kourav in detail and after going through the findings recorded and liberty granted by Gwalior Bench in R. P. No. 458/2015, we direct that in case any of the petitioners were not permitted to appear in the examination that was conducted in December 2015 due to paucity of time or for any other reason, Board shall now permit such of the petitioner or such candidate to appear in the examination which is to be held in May 2016 subject to the petitioner/candidates being eligible to appear in the examination having fulfilled all other requirement.
5. In the order already passed by us in original writ petition, we have directed the applicant Board to publish the result of the students who have participated in the examination, provided that they are otherwise eligible. That being so, for the present, we grant liberty to the respondent 4 WP 8566/16 Nirpat Singh & others Vs. Madhyamik Shiksha Mandal & Anr.
Board by directing that while scrutinizing the case of the candidates for declaration of result, if the Board finds for any reason whatsoever, that any of the candidates were or are ineligible to appear in the examination it shall be incumbent upon the Board to issue notice to the candidate concerned, mention ground which makes him or her ineligible to participate in examination, give an opportunity to the candidate to give his/her say in the matter and thereafter, pass a speaking order holding him or her eligible or ineligible to appear in the examination. Subject to aforesaid modification to the order dated 8.12.2015 passed in the original writ petition, these applications stands disposed of. The question of declaration of result of the candidate who had already appeared in the examination, shall also be considered in identically manner for the purpose of considering their eligibility and taking action."
(14) In view of the aforesaid circumstances, according to which when the identical petitions pending either before the Principal Seat of this Court at Jabalpur or before the Bench of this Court at Indore have been disposed of in the light of the aforesaid decision of the Apex Court and the Division Bench decision of this Court at Jabalpur, then we do not find fit to keep this matter pending for adjudication, as prayed on behalf of counsel of the respondentsBoard but in the available circumstances, the petitioner being a student situated in the similar circumstances, in which those students are falling, whose writ petitions have been decided and disposed of in the aforesaid manner by the Apex Court as well as Division Bench of Principal Seat of this Court, besides the Division Bench of this Court at Indore, all the abovementioned writ petitions are disposed of and allowed with the same terms stated by the Apex Court in the order dated 5 WP 8566/16 Nirpat Singh & others Vs. Madhyamik Shiksha Mandal & Anr.
04/09/2015 passed in Special leave to Appeal (C) No.21977/2015 and the Division Bench decision of Principal Seat of this Court at Jabalpur vide order dated 08/12/2012 passed in bunch of Writ Petitions bearing/leading WP No. 7490/2015 and the order dated 14/01/2016 passed in bunch of Review Petitions bearing/leading Review Petition No.945/2015. In such premises, it is also observed that the parties of the petitions shall be entitled to get the benefit in terms of aforesaid orders of the Apex court as well as of Division Bench of Principal Seat of this Court, reproduced above."
2.1 From the above it is clear, especially by contents of para 5 of the order dated 14/1/2016 passed in R.P.No.945/15, which is quoted in the above said common order dated 10/3/2016 in W.P.No.3242/15 that liberty was granted to the Board to scrutinize eligibility of each students for declaration of the result with further observation that if the Board finds any of the candidate to be ineligible to appear in the first year examination, it shall be incumbent upon the Board to issue notice to such candidates mentioning ground for declaring them ineligible to participate in the examination and give them an opportunity to respond and thereafter pass speaking order holding them ineligible. 2.2 Pursuant to the said direction, the result of the petitioners was declared in June, 2016 where they were declared failed in two subjects of the first year.
2.3 Now, the question before this court is whether in the given facts and circumstances, the petitioners are entitled to one more chance to appear in the D.El. Ed. First year examination in terms of amended instructions dated 17/12/2012, Annexure-P/1 filed with the return of respondents-Board.
2.4 For ready reference and convenience, the amended 6 WP 8566/16 Nirpat Singh & others Vs. Madhyamik Shiksha Mandal & Anr.
instructions are reproduced below:-
1- fcUnq dzekad 6 &% ^^l=k 2012&2013 ls Mh-,M izFke o"kZ ds Nk=kksa dks ijh{kk mRrh.kZ djus gsrq vc dsoy fujUrj nks volj ¼eq[; rFkk vuqxkeh ijh{kk½ iznku fd;s tkosaxsA^^ ;fn vH;kFkhZ nks fujUrj voljksa dk ykHk ysus ds mijkar Hkh izFke o"kZ vFkok f}rh; o"kZ dh ijh{kk esa vuqRrh.kZ jgrk gsS rks vH;kFkhZ dks iqu% izos'k ysdj fu/kkZfjr ikB;dze iw.kZ djuk gksxkA 2- fcUnq dzekad 9 &% ^^Mh-,M ijh{kk esa dksbZ Hkh O;fDr Lok/;k;h mEehnokj ds :i esa ugha cSB ldsxk] fdUrq izFke ,oa f}rh; o"kZ ds fu;fer izf'k{k.kkFkhZ dks tks izFke volj dh ijh{kk esa vuqrh.kZ gks x;k gks] ;k U;wure mifLFkfr dk izfr'kr iwjk djus ds i'pkr Hkh fdUgha vifjgk;Z dkj.kksa ls ijh{kk esa u cSB ldk gks rks mls Lok/;k;h :i ls ijh{kk esa lfEefyr gksus gsrq mlh l=k dh vuqxkeh ijh{kk esa dsoy ,d volj vksSj fn;k tkosxkA mijksDr ¼c½ vuqlkj la'kksf/kr vkns'k leLr 'kkldh;@v'kkldh; MkbV laLFkku ,oa izf'k{k.kkFkhZ;ksa ij vkxkeh o"kZ 2013 dh Mh ,M ijh{kk ls ykxw gksaxsA 2.5 Prior to the above amendment dated 17/12/2012 there was no restriction in number of chances allowed for passing examination of the said course of D.El.Ed. However, the amendment introduced two basic changes. The first one imposes restriction on passing the said examination in two attempts (main and thereafter supplementary exam) failing which the candidate will have to seek admission to the course afresh. The other amendment vide Clause 9 is in the nature of proviso/exception to the above clause 6, essentially to cater to certain unforeseen circumstances beyond the control of candidate and is meant for those candidates who fail in the first attempt (main exam) or despite having necessary minimum class attendance could not appear in first attempt (main exam) due to unforeseen circumstances by allowing them to appear in the supplementary examination of the same session as a private candidate.7 WP 8566/16
Nirpat Singh & others Vs. Madhyamik Shiksha Mandal & Anr.
2.6 Pertinently, the expression " vifjgk;Z " found in clause 9 means "unavoidable" as per Bhargava's Standard Illustrated Hindi to English Dictionary 5th Edition at page 36. In Chambers 21st Century Dictionary (revised Edition) at page 1553 'unavoidable' has been stated to mean, 'not able to be avoided' and 'inevitable'.
2.7 Therefore, the reason assigned by a candidate for being unable to appear in the exam should not be attributed to the candidate to enable him/her to avail the benefit under clause 9. 2.8 Testing the attending factual matrix on the anvil of amended provisions enumerated above, it is clear that second chance for appearing as private candidate in the supplementary examination of the same session is available to those candidates who are unable to pass the main examination in first chance for unavoidable reasons not attributed to the candidate. 2.9 In the instant case, the petitioners were not permitted to appear in the first year examination held in July, 2015 which was their first chance on account of non-furnishing of certain necessary documents within the prescribed period of time. This dispute of entitlement of petitioners to appear in the said exam became subject-matter of adjudication in W.P.No.5030/15 before this court and was finally decided by order dated 10/3/2016 by affording liberty to the Board to declare the result of D.El.Ed. First year exam after deciding eligibility of petitioners to appear in first year examination by adopting the due process of law. 2.10 It is admitted position that the Board has declared the result of first year exam in June, 2016 without conducting any enquiry as regards eligibility of petitioners to appear in the first year exam.
3. This court in the given facts and circumstances was initially 8 WP 8566/16 Nirpat Singh & others Vs. Madhyamik Shiksha Mandal & Anr.
of the view that the petitioners are entitled to avail second chance to clear first year D.El.Ed. Examination. However, on deeper probe this court found that issuance of a writ allowing the petitioners to avail said chance would be an exercise in futility. The reason being that the petitioners were admitted to two years D.E.Ed. Course, in July, 2014 and the statutory bar under Clause 2.1 of National Council for Teacher Education (Recognition Norms & procedure) Regulation, 2014 has come into effect from 28/11/2014 which prescribes maximum period of three years for two years D.El.Ed. for the students to complete the said course. Since the petitioners were admitted in July, 2014, the maximum period of three years shall expire in June, 2017 and therefore 12 months of study/training for second year cannot be undertaken by the petitioners in the next 6 months. A Coordinate Bench of this court at the Principal Seat at Jabalpur in bunch of petitions including W.P.No. 5478/16 (Ram Kishore Yadav & others Vs. M.P. Board of Secondary Education & others) decided by a common order dated 28/6/2016, took the view that the 2014 Regulations can be made applicable in the midst of the D.El.Ed. Course. The relevant para of the said judgment is reproduced below:-
"16. The counsel for the petitioner has contended that the Board had no power and authority to limit the chances because in the year 2012 NCTE did not prescribe period for completion of the course. In our opinion, the arguments advanced by the learned counsel for the petitioners could not be accepted because in accordance with the regulation of 2009 framed by the NCTE, which was applicable at the time of admission of the petitioners, the institution after 9 WP 8566/16 Nirpat Singh & others Vs. Madhyamik Shiksha Mandal & Anr.
recognition had to take affiliation from the examining body and there was no provision to control period to complete the course. Certainly, the affiliating body had power and authority to control the same because there is no conflict between the Regulation, 2009 and the order issued by the Board in 2012 limiting the chances of clearing examination. Hence, in our opinion, the petitioners are not eligible to get third chance. Even if the arguments of the petitioners are accepted, then the petitioners would get unlimited chances and this would be contrary to the procedure adopted by the affiliating body/Board for the purpose of conducting the examination. It is a fact that the regulation prescribes that after getting recognition to conduct course, the institution has to get affiliation from the examining body and in that event, the examining body has power and authority to regulate the procedure of examination which includes chances to clear the examination. "
3.1 Moreover, said statutory bar prescribing maximum period of three years for completing said course contained in above Regulations, 2014 has not been assailed by the petitioners. More so, the petitioners have also not sought any interim relief or otherwise from this court to pursue second year course/training during pendency of earlier and this litigation. 3.2 Consequently, this court is of the considered view that issuance of any writ in favour of the petitioners would lead to issuing of futile writ which should be avoided.
4. Subject to what has been stated above, Writ Petition No 10 WP 8566/16 Nirpat Singh & others Vs. Madhyamik Shiksha Mandal & Anr.
8566/16 (Nirpat Singh & others Vs. Madhyamik Shiksha Mandal & Anr.) W.P.No.4789/16 (Arti Rajput Vs. Board of Secondary Education), W.P.No.5058/16 (Vinita Devi Vs. Board of Secondary Education) and W.P.No.4412/16 (Koushalya Devi Vs. Board of Secondary Education), stand dismissed.
No cost.
(Sheel Nagu) (S.K.Awasthi)
Judge Judge
(Bu)