Calcutta High Court (Appellete Side)
Re: Dipsikha Ghosh & Ors vs State Of W. B. & Ors .. Opposite Parties on 7 March, 2014
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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W. P. No. 37606 (W) of 2013
Re: Dipsikha Ghosh & Ors. .. Petitioners.
Versus
State of W. B. & Ors .. Opposite Parties.
Mr. Subrata Mukhopadhyay,
Mr. Sakti Pada Jana
.. For the Petitioners.
Mr. Debdutta Sen,
Mr. Jeevan Ballav Panda,
Mr. Rishav Dutta
.. For the O. P. Nos. 2 & 4.
Mr. Ranajit Chatterjee,
Mr. Nilratan Banerjee,
Mr. Prasenjit De
.. For the Council.
Considering the urgency involved in this writ application it is taken
up out of turn for final hearing with the consent of the parties.
This writ application is filed by four unsuccessful students in the test
examination conducted by Ballygung Siksha Sadan, District-Kolkata. Their
names have not been forwarded to the West Bengal Council of Higher Secondary
Examination for the purpose of participating in the ensuing Higher Secondary
Examination, 2014.
According to Mr. Subrata Mukhopadhyay, learned advocate
appearing on behalf of the petitioners, though the petitioners were not allowed to
participate in the ensuing Higher Secondary Examination, 2014, other similarly
circumstanced students were allowed to participate in the said examination.
Drawing the attention of this Court towards page 30 of this writ application, it is
submitted by Mr. Mukhopadhyay that Sudeshna Mondal and Sana Nadim were
allowed to participate in the ensuing examination. It is also submitted by the
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petitioners that the marks obtained by them in the above test examination were
not disclosed to them. According to Mr. Mukhopadhyay, though a representation
dated December 16, 2013 was submitted by the father of the petitioner no. 1, the
Deputy Secretary (Examination), West Bengal Council of Higher Secondary
Examination with a prayer to allow the petitioner no. 1 to participate in the
ensuing Higher Secondary Examination, 2014, the same has not yet been
disposed of.
It is submitted by Mr. Debdutta Sen, learned advocate appearing on
behalf of the respondent School, that all the petitioners failed in at least three
compulsory elective subjects in the test examination and for that reason their names were not forwarded to the respondent Council for participating in the ensuring Higher Secondary Examination. It is also submitted by Mr. Sen that after filing of this writ application, the petitioners, amongst other unsuccessful candidates, were allowed to appear in the retest examination. In the above retest examination three writ petitioners, namely, Olivia Das, Dipsikha Ghosh and Ankita Chakraborty failed in four subjects. The other writ petitioner, namely, Rivika Biswas, failed in three subjects. It is further submitted by Mr. Sen that two other candidates, namely, Sudeshna Mondal and Sana Nadim, passed in the retest examination and as a result they were allowed to participate in the ensuing Higher Secondary Examination, 2014.
It is submitted by Mr. Ranajit Chatterjee, learned advocate appearing on behalf of the respondent Council, that to fix the norms and procedures for examining the merits of the students in test examination, the school is the only authority. The respondent Council cannot interfere with that internal affairs of the concerned school in accordance with the provisions of Rule 30 (3) of the Management Rules of 1989. As a result, the representation submitted by the father of the petitioner no. 1 was not taken up by the respondent Council for consideration. According to Mr. Chatterjee, the provisions of West Bengal Higher Secondary Education (Examination) Regulations of 2006 (hereinafter referred to as the said Regulations) does not permit any student to appear in the Higher 3 Secondary Examination without fulfilment of the eligibility criteria prescribed in Regulation 6 of the said Regulations of 2006 even after giving relaxation under the provisions of Regulation 9 of the said Regulations of 2006.
For the purpose of adjudicating the issues involved in this writ application, the provisions of Regulations 6 and 9 of the said Regulations of 2006 are quoted below:
"6. Eligibility to appear in Higher Secondary Examination as regular candidate.
A candidate must fulfil the following conditions to be eligible for appearing in the Higher Secondary Examination as regular candidate:-
(a) he must have obtained the registration number from the Council after fulfilling the conditions laid down in the West Bengal Council of Higher Secondary Education (Admission and Allied matters) Regulations, 2006;
(b) he must have passed the Annual Examination at the end of academic sessions of Class-XI of the Higher Secondary Course;
(c) he must have passed the Test Examination corresponding to the Higher Secondary Examination;
(d) he must have attend not less than seventy per centum of the total classes in Class XI and Class XII separately held during that course prior to commencement of the examination;
Provided that the Council, upon payment of such fee as may be determined by it, may condone any deficiency not exceeding twenty per centum in the attendance on the ground of illness or any other sufficient reason ;
Provided further that a student, whose attendance falls below fifty per centum, shall not be eligible under any circumstances to appear at the examination in that year and shall have to attend Classes in Class XI or Class XII, as the case may be, till he obtains minimum percentage of attendance required for the purpose in respective classes."
4"9. Option of changing compulsory elective subject as compulsory optional subject etc. (1) If a candidate fails to obtain minimum pass marks in any compulsory subject excepting Environmental Education for the reasons of deficiency of less than five per centum of full marks, he shall, to make up the deficiency in the compulsory subject, be given credit by transfer of marks from the highest marks, obtained by him in a compulsory subject excepting Environmental Education.
(2) Notwithstanding anything contained in regulations 6, 7 and 8, a regular candidate or continuing candidate or special candidate who cannot be declared passed in the examination by reason of his-
(a) not appearing in the examination of a compulsory elective subject, or
(b) failure in obtaining the minimum pass marks in a compulsory elective subject, but has obtained the minimum pass marks in the optional elective subject, shall be declared passed by giving him the benefit of interchanging the compulsory elective subject as the optional elective subject and vice versa:
Provided that if a candidate does not, for any reason, intend to take the benefit of interchanging the subjects, he shall, through his institution, intimate his intention as such, and surrender his mark-sheet for necessary correction therein, to the Council within thirty days from the date of publication of results."
After considering the cases of the petitioners, I find that admittedly they were allowed to appear in the retest examination. The ultimate decision was taken by the respondent school authority on the basis of the performances of the petitioners in the retest examination. Therefore, leaving aside the results of the 5 petitioners in the test examination, the issues involved in this writ application can be decided on the basis of the aforesaid retest examination.
Admittedly, three out of four writ petitioners, namely, Olivia Das, Dipsikha Ghosh and Ankita Chakrbaorty, failed in four subjects in the above retest examination and the other writ petitioner, namely, Rivika Biswas, failed in three subjects in the above retest examination. A statement relating to their performances in the retest examination is set out below:
Retest Examination Results for the Four students Physics Chemistry Biology Maths Full Marks Full Marks Full Marks Full 80 80 80 Marks 100 Olivia Das 8 11.5 9.5 1.5 Dipsikha Ghosh 5 9.5 14.5 5 Physics Chemistry Biology Rivika Biswas 2 6.5 4.5 Economics Political Maths Statistics Science Full Marks Full Marks Full Marks 80 80 80 Ankita Chakraborty 6 4.5 0 2.5 Let the true copy of the above statement produced by the respondent school be kept with the record.
In view of the above performances, the provisions of clause (c) of Regulation 6 of the Regulations of 2006 stand in the way of allowing the petitioners in participating in the ensuing High Secondary Examination. It is the settled principles of law that a court of equity cannot grant a relief to an unsuccessful candidate to appear in any examination violating the statutory 6 provisions. Reference may be made to the decision of the C.B.S.C. & Another vs. P. Sunil Kumar reported in (1998) 5 SCC 377.
"We are conscious of the fact that our order setting the impugned directions of the High Court would cause injustice to these students. But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel to Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of students. In view of the aforesaid premises, we set aside the impugned judgement of the Division Bench of the Kerala High Court as well as the interim orders issued by the single judge in several petitions out of which the writ appeals arose and the writ petitioners filed by the respondents stands dismissed. These are appeals are allowed but in the circumstances there will (be) no order as to costs."
In view of the above no case is made out by the petitioners to grant the relief on their behalf.
So far as the ground of discrimination is concerned, two other students, namely, Sudeshna Mondal and Sana Nadim, passed in the retest examination. Therefore, they were not similarly circumstanced to the petitioners. Assuming that the aforesaid two students (who have not been made parties to this proceeding) were allowed to participate in the ensuing Higher Secondary Examination, 2014 due to any wrong action on the part of the respondent school, it does not confer any enforceable right on the petitioners to obtain an order in a judicial proceeding or a court of equity which amounts to perpetuate such wrong of violating the statutory provision. Reference may be made to the decision in the case of Vishal Properties (P) Ltd. vs. State of Uttar Pradesh & Others reported in (2007) 11 SCC 172 and the relevant portion of the above decision in paragraph 18 is quoted below:
"Recently in State of Kerala vs. K. Prasad it was inter alia held as follows :7
"14 Dealing with such pleas at some length, this Court in Chandigarh Admn. V. Jagjit Singh has held that : '8 ...If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order.
The extraordinary power of the High Court (under Article 226) cannot be exercised for such a purpose.' This position in law is well settled by a catena of decisions of this Court (see Secy., Jaipur Development Authority v. Daulat Mal Jain and Ekta Shakti Foundation v. Govt. of NCT of Delhi). It would, thus, suffice to say that an order made in favour of a person in violation of the prescribed procedure cannot form a legal premise for any other person to claim parity with the said illegal or irregular order. A judicial forum cannot be used to perpetuate the illegalities."
With reference to allegation of non-disclosure of marks obtained by the petitioners, I do not find any pleading in the writ application in support of the submissions made by Mr. Mukhopadhyay from the Bar. Since this is a disputed question of fact, the above allegation cannot be examined in the absence of any pleading in the writ application. But at the cost of repetition it is observed here that the result of the test examination lost its importance once chances were given to the petitioners to appear in the retest examination in respect of the subjects in which they had failed. The statement containing the results of all the petitioners are produced before this court, it has been incorporated in this judgment hereinbefore. Therefore, I do not find nay substance in the above allegation made on behalf of the petitioners.
With regard to non-consideration of the representation of the petitioners by the respondent Council, I find substance in the submissions made by Mr. Chatterjee, learned advocate appearing on behalf of the respondent Council, that framing of norms and procedures for examining the merits of the students in the test examination was an internal matter and in view of the settled 8 principles of law, the respondent Council was not in a position to interfere with the allegations made in the representations submitted by the father of the petitioner no. 1. Reference may be made to the decision in the case of Ms. Debapriya Ghosh vs. State of West Bengal & Others reported in A.I.R 2005 Cal 76 at Paragraph 37 :
"It appears from Section 21 of the West Bengal Council of Higher Secondary Education Act, 1971 being source of power, that the Council respondent has no jurisdiction and/or authority to give any direction aiming at to interfere with the independent functioning of the institution. Each and every institution ought to have and/or might have laid down its own norms and terms and conditions for admitting students and declaring a student to be successful in class examination as well as for taking test examination. Having agreed to the terms and conditions the guardians of the students get admission of their wards. I do not see any irrationality in laying down different standards and norms by different schools according to their own policy and wisdom having regard to their suitability. The internal arrangement of school concerned as urged appropriately by learned Government Pleader should not be interferred with by the Council or for that matter by the Court in any manner, even by giving direction or laying down any norms. It is true if there is any discrimination in the assessment and evaluation of the performance of a particular student on the basis of their own norms such aggrieved students may approach the appropriate forum for getting redressal individually. Mr. Chatterjee has rightly drawn my attention to the Supreme Court decision reported in 1986 (Supp) SCC 20: (AIR 1986 SC 1323) (paragraph 50) wherein it is observed amongst other that possibility of abuse of power or arbitrary exercise of power cannot invalidate the statute conferring the power of the power, which has been conferred by it. Similarly as because in one or two isolated case (s) the said clause 9 (xxv)(c) is proved to have worked injustice and ineffective to one or more candidates who though failed in test examination, came out successful on the strength of Courts order, cannot be a factor to hold the same being irrational and discriminatory. This restriction in my opinion, is reasonable aiming at to classify between bad student and good student and aiming at to achieve the object of the said Act and Regulation framed thereunder."
In view of the discussions and observations made hereinbefore, this writ application stands dismissed.
9There will be no order as to costs.
Urgent photostat plain copy of the order duly countersigned by the Assistant Registrar (Court) be handed over to the learned advocate for the petitioners as early as possible.
(Debasish Kar Gupta, J.)