Orissa High Court
Amarjeet Jena vs Council Of Higher Secondary Education, ... on 21 September, 1998
Equivalent citations: AIR1999ORI129, AIR 1999 ORISSA 129, (1998) 2 ORISSA LR 629
Author: Pradipta Ray
Bench: Pradipta Ray
JUDGMENT Pradipta Ray, J.
1. The writ petitioner appeared at the Annual Higher Secondary Examination of 1997 under the Council of Higher Secondary Education, Orissa (hereinafter referred to as the 'Council'), but his result has been withheld on the ground that he was not eligible to appear at the said Higher Secondary Examination. The petitions has filed this writ petition challenging such withholding of result.
2. Undisputed facts of the present case are :--
The petitioner passed All India Secondary School Examination of 1994 conducted by the Central Board of Secondary Education (hereinafter referred to as the 'C.B.S.E.') from Sainik School, Bhubaneswar. He was thereafter admitted into All India Senior School Certificate Course in Science conducted by C.B.S.E. which is equivalent to '+2 Science Course' of the Council in Orissa. He appeared in the said All India Senior School Certificate Examination in 1996 but failed. In the meantime his father was transferred from Bhubaneswar to Keonjhar. There being no Central School affiliated to C.B .S.E. petitioner had to get himself admitted in the 2nd year of Council's + 2 Science Course in Anandpur College. At the time of admission petitioner submitted all the relevant documents including the School Leaving Certificate, Pass Certificate of All India Secondary School Examination of 1994, Conduct Certificate issued by Sainik School and the Migration Certificate issued by the Central Board of Secondary Education. Petitioner's name was duly forwarded" to the Council by Anandpur College for necessary permission to appear at the Higher Secondary Annual Examination of 1997. Council issued Admit Card permitting him to appear at the said Examination without any condition or qualification. Petitioner duly appeared at the said Annual Examination of 1997, but his result has been withheld on the ground of absence of registration and ineligibility for appearing at the said Examination.
3. In the counter filed by the Council it has been pointed out that under the Regulation of the Council, no student whose name has not been entered in the Register of students can be permitted to appear for any Examination of the Council and a registered student of the Council may be admitted to the Annual Examination of the Council only if he or she has completed a regular course of study in one or more affiliated institutions recognised for the purpose of Council's Examination for not less than two academic years after passing the High School Certificate Examination of the Board of Secondary Education, Orissa or some other equivalent Examination recognised by the Council. According to the Council, petitioner did not study for two years in any affiliated institution recognised for the Council's Higher Secondary Examination.
4. Mr. Ganeswar Rath, learned Advocate appearing for the petitioner, has submitted that the provisions of Regulation 107 of the Orissa Higher Secondary Education (Amendment) Regulation, 1983 (hereinafter referred to as the 'Regulation') should be liberally construed to make it flexible enough to take care of a situation like the present one. Any narrow or restricted construction of the provision will bring about most unreasonable, harsh, anomalous and unjust results defeating the genuine interests of the students. He has placed reliance upon a decision of the Supreme Court in Meenakshi Malik v. University of Delhi, reported in AIR 1989 SC 1568. He has further submitted that the petitioner having been admitted into 2nd year of+2 Science Course by the College and the Council having permitted him to sit in the Examination by issuing unconditional Admit Card, he cannot be held responsible for any irregularity committed by the College and the Council is estopped from refusing to register him and to publish his result. In support of the second submission, Mr. Rath has referred to the decision of the Supreme Court in Sanatan Gouda v. Berhampur University, AIR 1990 SC 1075, followed in Prakash Chandra Kuanr v. Secretary, Board of Secondary Education, Orissa, reported in 1996 (II) OLR 268, a decision of Allahabad High Court in Kumari Geeta Verma v. Secretary, Board of High School & Intermediate Education at Allahabad, reported in AIR 1991 All 368, and a decision of Calcutta High Court in Jaisree Pal v. Stale of West Bengal, reported in AIR 1990 Cal 253.
5. Mr. Das, learned Advocate appearing for the Council has placed reliance on Regulations 107 and 164 of the Regulation and Contended that the petitioner was not entitled to be registered as a student of 2nd year and was ineligible to appear at the said Annual Examination of 1997. According to him, a student ineligible under the Regulation is not entitled to get any order from this Court to publish his result In support of his submission Mr. Das has relied upon decisions of Supreme Court in AIR 1998 SC 2235 : (1998 AIR SC W 2128),C.B.S.E.v. P.Sunil Kumar and AIR 1997 SC 2168 : (1997 AIR SCW 2023), Regional Engineering College, Hamirpur v. Gurjeet Singh of Karnataka High Court reported in AIR 1998 Kant 294, K. Shashidhara Rao v. Dr. Ambedkar Institute of Technology, Bangalore and of Andhra Pradesh High Court reported in AIR 1998 Andh Pra 263, M.R. Jayaseel v. Secretary, State Board of Technical Education & Training, A.P.
6. For the purpose of better appreciation of the rival contentions Regulations 107 and 164 of the Regulation are quoted below :--
"107.--Any registered student of the Council may be admitted to the Annual Examination in Arts, Science and Commerce Courses, if he/she has completed in one or more affiliated institutions, recognised for the purpose of such exami-nations a regular course of study, on the subjects in which the candidate wishes to be examined, for not less than two academic years after passing the Higher School Certificate Examination of the Board of Secondary Education, Orissa, or some other examination recognised by the Council as equivalent thereto (Examinations conducted by the Central Board of Secondary Education, Indian School Certificate Examination and the Board of Secondary Education of other States in India) and has been promoted to the second year class on the basis of the examinations conducted by the institution in the first year :
Provided that a student-
(i) who has passed the Higher Secondary Examination may be permitted to appear at the same examination subsequently, in any subject in which he has not already passed, without attending a regular course of study in an institution;
(ii) who takes up a subject in which a practical course is prescribed, shall have to produce a certificate from the Head of the institution to the effect that he has completed the prescribed practical course in that subject;
(iii) who passed the High School Certificate Examination of the Board of Secondary Education or its equivalent Examinations conducted by the Central Board of Secondary Education and the Boards of Secondary Education of other States in India, can take the Higher Secondary Examination, Arts and Commerce only as a private candidate. Provided that he produces a certificate of proficiency from a Head of the institution (College or Higher Secondary School) two years after passing the qualifying examination;
(iv) who prosecuted studies for a part of the duration of the Higher Secondary Science Course in an institution not affiliated to the Council of Higher Education in such course but which has been so affiliated prior to the date of commencement of the Orissa Higher Secondary Education (Amendment) Regulations, 1986 may appear at the Council of Higher Secondary Education Examination of 1986 and J987 only as a private candidate subject to submission of a certificate from the Principal of that institution to the satisfaction of the Council that he has completed the practical course of studies in the subjects concerned.
Provided that the Council, may, where it deems necessary, satisfy itself that the institution in which practical course of studies was said to have been prosecuted by the candidate had facilities for providing instructions in Higher Secondary Science Course.
XX XX XX
164. (1) No person whose name has not been entered in the register of students shall be permitted to appear for any examination of the Council.
(2) Before being admitted to an examination, a candidate must have been registered. A candidate shall be registered afresh on each occasion of presenting himself for examination, and he shall register an application in the prescribed form either to the Controller of the Examinations direct or through the Head of the institution paying the fees prescribed.
(3) Every candidate for examination shall produce a certificate of having previously passed the qualifying examination if any, prescribed by law.
(4) He shall also, unless exempted by special order of the Examination Committee, submit the certificate of attendance.
(5) No candidate shall be permitted to sit for an examination unless his term and annual certificate of attendance, certificate of conduct, progress or order of exemption, if any granted him, have been received by the Controller before the commencement of the examination.
(6) The conditions of exemption, if any, may be given to enable the candidate to appear any examination of the Council as prescribed from time to time in the Regulations, and no exemption from the production of attendance certificates and/or progress and conduct certificates required from any institution as the case may be, shall be given, except in conformity with conditions prescribed in the Regulation.
(7) Order of exemption granted in accordance with these Regulations shall be permanent."
7. An educational body like the Council is created to promote the interest of education and that of the studying students. The rules and regulations framed by such educational bodies are also designed to serve the purpose of promotion of education. The Council has been established by the Orissa Higher Secondary Education Act, 1982 to regulate, control and develop Higher Secondary Education in the State of Orissa. The purpose behind Regulation 107 is to ensure that a candidate seeking to appear at the Higher Secondary Examination must have prosecuted study in Higher Secondary or equivalent Course for a period of at least two years after clearing the Secondary or equivalent Examination.
8. In India apart from the State Boards or Councils there are two Central Boards, namely, the Central Board of Secondary Education and Council of Indian School Certificate Examination which conduct Secondary and Higher Secondary Course and Examinations at All India levels without any territorial limitation. These Secondary and Higher Secondary Courses and Examinations conducted by those Central Educational Bodies have been recognised by all State Boards/Councils within India including the Council in Orissa as equivalent to the Secondary and Higher Secondary Course and Examinations of the respective State Boards or Councils. The Courses of Study prescribed by different State and Central Bodies are more or less similar though methods of Examination and valuation are different.
9. It is well known that for various reasons including reasons associated with employment, profession or business persons are required to move from one place to another within or without the State or even to abroad. Wards of such persons need reasonable opportunity and facility of receiving education at those new places or at the original place if they come back. Rules and Regulations of Educational Bodies like the Council should be made to facilitate and provide reasonable opportunities and not to place any unjustifiable obstacle in the way of extending opportunity to get admission to Courses of study or to appear at the appropriate Examination.
10. In Minakshi Malik's case, AIR 1989 SC 1568 (supra), the Supreme Court took similar view. In the said case Supreme Court was considering a rule of the University of Delhi whereby a student seeking Admission to the Medical Colleges in Delhi was required to prosecute last two years of study in a School in Delhi. Minakshi Malik, the petitioner therein was denied Admission to the Medical College on the ground that she did not study in a school in Delhi during the last two years preceding the Entrance Examination for Admission. It was not possible for Minakshi to have education in Delhi for the said prescribed period as her father, was posted in Nigeria in connection with his employment and had to take the members of the family with him. In the said context Supreme Court observed (at page 1570 of AIR) :--
".....,...... rules are intended to be reasonable and should take into account the variety of circumstances in which those whom the rules seek to govern find themselves."
The Supreme Court construed the rule as not applicable to students facing similar situation like Minakshi.
11. The situation faced by the petitioner in the present case is similar to that of Minakshi. He prosecuted two years study in Sainik School at Bhubaneswar affiliated to C.B.S.E. He appeared at the All India Senior School Certificate Examination but could not succeed. Because of transfer of his father he had to shift to Kaonjhar where there was no School or college conducting the courses for All India Senior School Certificate Examination. As he was a student of Science it was not possible for him to appear at any Examination without getting admitted into an institution and without attending practical classes. He had no other alternative than to gel himself admitted into a College affiliated to the Council and to appear at the next Higher Secondary Examination of the Council. Petitioner was also admitted into the College in the 2nd year. If he was not, admitted or was told that he would have to study for another two years in the College for getting eligibility to appear at the Higher Secondary Examination of the Council, he might have taken a different decision. In such situation if Regulation 107 is mechanically and literally applied a student for no fault of his own will have to lose one valuable year. We are therefore of a view that: the present case is a fit and appropriate case for! invoking the principle as enunciated and applied by the Supreme Court in Minakshi Malik's case.'
12. Mr. Das appearing for the Council has referred to the bye-laws of C.B.S.E. to argue that the candidates who failed in the All India Senior School Certificate Examination cannot reappear at the next Examination as regular candidates. The said submission is not correct. The concerned Regulation merely enables a failed student to reappear at the next examination as a private candidate. There is no prohibition and in fact there cannot be any prohibition from taking readmission in the School or College.
13. Mr. Das has also urged that Regulation 113(2) of the Council's Regulations prohibits readmission of a candidate who has failed or did not appear at the previous examination. Regulation 113(2) does not contain any such prohibition. It is also an enabling provision. The second part of the said Regulation provides that if a student offers any subject or subjects for which practical examination is prescribed, he is required to produce a certificate from the Head of the Institution that he has taken a further course of practical work in an institution in each subject for at least one month before the commencement of the examination at which he is to appear'. If a student is not permitted to take readmission, a student offering a subject with practical examination cannot get the required certificate and will not be able to reappear at the examination. Thus it is clear that Regulation 113(2) does not prohibit admission of a failed candidate in any School or College.
14. Mr. Das, learned Counsel has further argued that the Course for the Higher Secondary Examination of the Council and the Course of All India Senior School Certificate Examination of the C.B.S.E. are different and not interchangeable or inter-transferable. The said argument appears to be misconceived. Both the Examinations are admittedly equivalent Examinations. The Courses of studies and the syllabus is more or less similar. There cannot be any basic difference in the Science Course conducted by the C.B.S.E. for All India Senior School Certificate Examination and the Science Course for Higher Secondary Examination of the Council. Even Proviso III to Regulation 107 itself permits students of Arts and Commerce to appear at the Higher Secondary Examination in Arts and Commerce as private candidates two years after passing, the equivalent Secondary Examination of any other State Board or Central Board upon production of a certificate of proficiency from the Head of an Institution. Thus Regulation 107 itself shows that the Courses of equivalent Examinations are interchangeable or inter-transferable at the appropriate stage.
15. The decisions referred to by Mr. Das are not applicable to the situation of the present case. In P. Sunil Kumar's case, AIR 1998 SC 2285 : (1998 AIR SCW 2128), the concerned students were studying in unaffiliated institutions. They were permitted to appear at the Examination by an interim order of Kerala High Court. Ultimately the High Court took a sympathetic and compassionate view in directing to grant certificates to those students. In the context of those facts the Supreme Court allowed the appeals preferred by the Central Board of Secondary Education as no iota of material was placed before the Supreme Court that the Central Board of Secondary Education either directly or indirectly had held out to the students at any point of time and that the institutions in which those students were prosecuting their studies were affiliated or going to be affiliated at a near future. In the present case the Council itself issued Admit Card permitting the petitioner to appear at the Examination and there is no material to show that the student was informed that he was ineligible to appear at the said Examination. In K. Sashidhar Rao v. Dr. Ambedkar lnstitute of Technology, AIR 1998 Kant 294, the student did not have the minimum qualifying marks to get himself admitted into B.E. Degree Course. In the ' present case there is no qualitative deficiency for appearing at the Examination. In Regional Engineering College, Hamirpur v. Gurjit Singh, AIR 1997 SC 2168 : (1997 AIR SCW 2023), the Supreme Court found that passing of 3 years' Diploma Course in Engineering was not equivalent to passing of 1st year of the Degree Course and accordingly it was held that there could not be any direct literal entry of the Diploma holders to the second year of the Degree Course without obtaining remedial course provided for the purpose. In the present case there is no dispute regarding equivalence of the Course for All India Senior School Certificate Examination and the Course for Higher Secondary Examination of the Council,
16. Mr. Das has strongly contended that the Court should not give any direction asking the Council to act contrary to its regulations. In support of his submission he has relied upon the decisions of the Supreme Court in AIR 1986 SC 1490, A. P. Christians Medical Education Society v. Govt. of Andhra Pradesh and AIR 1994 SC 43 : (1993 AIR SCW 3089), St. John Teachers Training Institute, Madurai v. State of Tamil Nadu. In those cases the concerned students prosecuted study in unrecognised and unaffiliated institutions and it was found that the University issued timely warnings to the students seeking admission into those unrecognised and unaffiliated institutions. In that context Supreme Court has observed that it cannot direct the University to disobey its own regulations. As already explained the present situation is different from that of the aforesaid two decisions.
17. In similar situations like the present one where the examining body issued Admit Card permitting the students to appear at the Examination without any condition or qualification and the student did not suffer from any basic qualitative deficiency, Courts directed publication of results. In Sanatan Gouda v. Berhampur University, AIR 1990 SC 1075, the Supreme Court applied the principle of estoppel and directed the Berhampur University to declare result of the appellant therein observing (at page 1078 of AIR):
"This is apart from the fact that I find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his mark-sheet along with the application for admission. The Law College had admitted him. He had pursued his studies for two years. The University had also granted him the admission card for the Pre-Law and Intermediate Law Examinations. He was permitted to appear in the said examinations. He was also admitted to the final year of the course. It is only at the stage of the declaration that the University raised the objection to his so-called ineligibility to be admitted to the Law Course. The University is, therefore, clearly estopped from refusing to declare the result of the appellant's examination or from preventing him from pursuing his final year course."
Decision in Sanatan Gouda's case, AIR 1990 SC 1075 (supra), was followed by a Division Bench of this Court in Prakash Chandra v. Secretary, Board of Secondary Education reported in 1996 (2) OLR 268. In similar situations Calcutta and Allahabad High Courts also directed publication of results (AIR 1990 Cal 253 and AIR 199! All 368). Applying the principles as emanated from the decisions of the Supreme Court in Minakshi Malik's case and Sanatan Gouda's case we are of the view that the present case is a fit case where the Council is to be directed to publish result of the petitioner.
18. Besides, it appears to us that if literally construed Regulation 107 imposes unreasonable restriction which is totally incompatible with the prevailing system of having different equivalent examinations conducted by different State Boards or Councils and the Central Boards and thereby produces undesirable and unfair results.
19. Articles 19(1) (d), (e) and (f) of the Constitution of India guarantee the citizens of India the right to move freely throughout the territory in India, to reside and settle in any part of the territory of India and to practise any profession or to carry out any occupation, trade or business subject to reasonable restrictions imposed by law in the interests of the general public or for protection of the interest of any Scheduled Caste or Tribe. Right to life enshrined in Article 21 of the Constitution of India includes right of every child to full development and right to education. Even if the State cannot provide full scope and create an ideal atmosphere for extending opportunities for education it cannot impose restrictions which directly or indirectly make enjoyment of such fundamental rights impossible or illusory. Supreme Court in Miss. Mohini Jain v. State of Karnataka, reported in AIR 1992 SC 1858 : (1992 AIR SCW 2100), has declared (at page 1864 of AIR) :--
"The State is under a Constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all."
XX XX XX 'Right to life' is the compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.
The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Art. 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity.
The 'right to education', therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a Constitutional mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens."
20. No doubt educational bodies have the exclusive right to regulate the system of education, admission of students, holding of examinations, maintenance of proper standard of education, but in the process of regulating admission into any course or examination those bodies cannot unreasonably restrict or curtail the opportunities to receive education.
21. Undesirable and objectionable results flowing from literal and narrow construction of Regulation 107 can be demonstrated by the following hypothetical illustration.
A student after passing the Secondary Examination of the State Board in West Bengal, he started prosecuting the Higher Secondary Science Course of the Higher Secondary Council of West Bengal and completed the 1 st year of the 2 year Course. In or around that time his father, a transferable employee, is transferred to Orissa in connection with his employment. The student comes to Orissa with his parents. The Secondary Examination and the Higher Secondary Course and Examination of the Council in West Bengal are accepted to be equivalent to Secondary and Higher Secondary Course in Orissa. The student has no other alternative than to get admitted into a College in Orissa to study the Higher Secondary Course of Orissa Council and to appear at the Higher Secondary Examination of the Council, If Regulation 107 is mechanically applied the student, however, brilliant he may be, will be required to lose one valuable year as he cannot get himself admitted into second year of Higher Secondary Science Course, even though the Course is equivalent and the subjects studied by him are also available in the College in Orissa.
Thus, Regulation 107 if narrowly construed does not promote the interest of education, but takes away a valuable year by denying him the opportunity to get admitted into Second Year of the +2 Science Course and to appear at the Examination. Suppose a student is compelled to take admission in the First Year of the Course. After one year of study in Orissa his father is again transferred to a State where there is a regulation like Regulation 107. The student will have to lose another year and take admission again in the First Year in the new State.
22. Regulation 107 as sought to be construed and applied by the Council attracts vice of unreasonableness and discrimination against the students of Science. Proviso III to Regulation 107 enables a student passing any examination equivalent to High School Certificate Examination of the Board of Secondary Education, Orissa to take Higher Secondary Examination of the Council in Arts and Commerce as private stu-dents after two years on production of a Certificate of Proficiency from the Head of an Institution. Thus students of Arts and Commerce get the opportunity of appearing at the Higher Second-ary Education at least as private students without losing any year. It is well-known that a Science student cannot appear as a private candidate. In a similar situation as that of the petitioner or in the situation as described in the illustration given hereinbefore a student of Science will have to lose one year, but a student of Arts and Commerce gets opportunity of appearing at least as a private student.
23. Another kind of unreasonableness flows from a literal construction of Regulation 107. A student of Arts or Commerce is permitted to appear at the Council Examination as a private candidate without studying in any School or College recognised by the Council, but he cannot be admitted in the second year of the Course. We do not find any logic or justification for not permitting such a student to get admitted in the 2nd year of the Course if he has duly studied and successfully completed 1st year of an accepted equivalent course with the same subjects. A student admitted into 2nd year of the Higher Secondary Course of the Council will also be required to pass the qualifying Test Examination before being sent up to take the final Examination. Thus there is no basis for any kind of apprehension that such a student will remain unfamiliar with the prescribed course for the Council's Examination.
24. Before striking down a provision of any Act, Rule or Regulation as unreasonable and ultra vires, it is necessary to consider whether it is possible to read down the concerned provision in a manner which will not attract the vice. It is an accepted canon of interpretation that if possible a construction which attracts vice of ultra vires, should be avoided. Of course if the language is so clear that it does not permit any liberal interpretation, Court is to either accept it or strike it down. Construction cannot be strained to include something which has been clearly and plainly excluded.
25. We have carefully considered the language of Regulation 107 and we are of the view that it is capable of being read down and in order to obviate irrational results it is necessary to read it down. If the words "such examination" after the words "one or more affiliated institutions, recognised for the purpose of in the main part of Regulation 107 is liberally construed or read down to include equivalent examination the provision will be free from the vice and will not produce any unjust and unreasonable consequences. In view of the opening words 'may be admitted' in Regulation 107 the Council will still have the power to deny permission to appropriate individual case for lawful and valid reason. We, therefore, hold that the expression "such examination" includes an equivalent examination rec-ognised by the Council.
25A. In pursuance of our direction a Xerox copy of the result of the petitioner was produced in this Court in a sealed cover. On our direction it was opened.
26. For the foregoing reasons, we allow this writ petition by directing the Council to register the name of the petitioner and to publish petitioner's result of Annual Higher Secondary Examination of 1997 forthwith.
R.K. Patra, J.
27. I agree.