Orissa High Court
Suchi Pragyan Rout vs Union Of India And Others on 5 October, 2015
Equivalent citations: AIR 2015 ORISSA 196
Author: Indrajit Mahanty
Bench: Indrajit Mahanty
IN THE HIGH COURT OF ORISSA, CUTTACK.
W.P.(C) Nos. 13912 and 14096 OF 2015
Applications under Articles 226 and 227 of the
Constitution of India.
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In W.P.(C) 13912 of 2015
Suchi Pragyan Rout ........ Petitioner
-Versus-
Union of India and others ......... Opp. parties
For Petitioner - M/s. M.K. Mohanty, T. Pradhan &
M.R. Pradhan
For Opp. parties - M/s. S. Gupta, L.Mishra and
S.N. Ratha (O.P. 3)
Ms. B.L. Tripathy (C.G.C.)
(O.P. 1)
M/s. S. Gupta, L. Mishra and
S.N.Rath (O.P.2)
Mr. T.N. Pattnayak (O.P.4)
In W.P.(C) 14096 of 2015
Abhijeet Nayak ........ Petitioner
-Versus-
Union of India and others ......... Opp. parties
For Petitioner - M/s. M.K. Mohanty, T. Pradhan &
S. Mishra
For Opp. parties - M/s. S. Gupta, L.Mishra and
S.N. Ratha (O.Ps. 2&3)
Ms. B.L. Tripathy (C.G.C.)
(O.P. 1)
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P R E S E N T :-
THE HONOURABLE MR. JUSTICE INDRAJIT MAHANTY
AND
THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
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Date of Argument-25.9.2015 : Date of Judgment- 05.10.2015
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DR. D.P. CHOUDHURY, J. Challenge has been made to the
inappropriate and illegal action of the opp. Parties by not
allowing them admission to the B.S.-M.S courses applied
by the petitioners. Since both the writ petitions have
common question of law, they are being disposed of by
this common order.
FACTS & SUBMISSIONS:
2. Learned counsels in both the writ petitions
submitted that both the writ petitioners in respective writ
petitions have secured 95% marks in five subjects
including one language subject with four elective
subjects in the Senior School Certificate Examination,
2015 (hereinafter called SSC Examination) conducted by
the Central Board of Secondary Education (hereinafter
called CBSE). Both the petitioners have taken Physical
Education as an additional subject. They applied for
prosecuting B.S.-M.S. dual Degree programme, 2015 in
the Indian Institutes of Science Education and Research
(hereinafter called IISER). Since both the petitioners
have secured cut-off marks 95% in Senior School
Certificate Examination, 2015 (hereinafter called SSE),
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they were allowed to appear in the competitive
examination. Both the petitioners were selected for
prosecuting B.S.-M.S. dual course in IISER at Mohali and
Kolkota respectively. But on 27.7.2015 the petitioner in
W.P.(C) No. 13912 of 2015 got a telephonic message
that her admission to IISER at Mohali has been cancelled
due to lack of 95% marks in the SSC Examination.
Similarly in W.P.(C) No. 14096 of 2015 the petitioner
went to Kolkota and submitted documents but he was
refused admission on the ground that he has not secured
95% marks in SSC Examination.
3. It is the contention of the learned counsels for the
petitioners coupled with the writ petitions that both the
petitioners have kept Physical Education as additional
subject and is required subjects i.e. one language with
four elective subjects or two languages with three
elective subjects, five subjects altogether are required as
pass criteria fixed under CBSE Regulation. The
petitioners having secured 95% marks in five subjects,
should not be denied admission in the IISER courses. It
is further submitted by learned counsels for the
petitioners that the opp. Parties 2 and 3 have erred in
law by calculating marks obtained by the petitioners in
Physical Education while calculating total marks,
inasmuch, as the additional subject is not required to be
considered eligibility of petitioners to get admission.
They further submitted that the refusal of admission of
the petitioners by the opp. Parties is absolutely illegal,
improper and liable to be quashed by allowing the writ
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petitions and the petitioners should be allowed to be
admitted in the courses applied for.
4. Learned counsel for the opp. Parties relying upon
the counter affidavit filed by opp. Party no.2 submits that
the writ petitions are not maintainable and the actions
taken by the opp. Parties is legal and proper. He
submitted that as per the information bulletin issued by
the IISER under Annexure-1 for admission to five years
dual course, the instructions have been clearly given that
marks obtained by the petitioners "in all subjects"
mentioned in the mark sheet would be taken into
consideration while considering cut-off mark. He further
stated that the institute is competent to establish and
decide its own criteria independent of the CBSE. He
further referred to a judgment of the High Court of
Kerala passed in W.P.(C) No. 18327 of 2012, where the
learned Single Judge has accepted the procedure
adopted by the opp. Parties. It is further submitted by
the learned counsel for the opp. Parties that at the time
of verification it was found that both the petitioners have
taken six subjects in the CBSE Class XII, then as per the
IISER principle they were found to have secured below
95%, although the cut off mark was 95%, resulting
refusal of admission to these petitioners. He further
submitted that since the subject Physical Education is
neither optional nor additional subject, it was not
possible for the opp. parties to ignore that subject while
calculating the marks of the petitioners. It is also
submitted by the learned counsel for the opp. Parties
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that since IISER is conducting examination for the
candidates who have qualifying examinations under
different Education Boards it is not possible to adopt the
procedure of selection depicted by the petitioners in their
writ petitions. On the whole, it is submitted by learned
counsel for the opp. Parties that the decision taken by
the opp. Parties is correct and rightly the petitioners
have been denied admission in IISER courses.
5. Learned counsel for the opp. Party no.3 submitted
in support of the affidavit filed by the opp. party no.3
that under the scheme for examination and pass criteria
for a student is that, one has to opt for five subjects in
total i.e. one language subject (Hindi/English) is
compulsory and four other elective subjects or he can
opt for three elective subjects and two language
subjects. He further stated that the additional subject
can be taken out of elective subjects or from the
language offered, but at any cost there should not be
more than two languages. He further stated that the
pass criteria in the examination for a candidate is to
obtain 33% of marks in each of all the five subjects (one
language and four elective subjects or two language with
three elective subjects).
POINT FOR DISCUSSION:
6. The only point for de termination in this case is as
to whether one language and four elective subjects of
the petitioners are qualifying subjects under CBSE to be
considered for their admission in IISER course.
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DISCUSSIONS
7. It is not disputed that the petitioners have applied
for BS-MS dual course of IISER. It is also not disputed
that they have passed the SSC Examination conducted
by the CBSE. Petitioner in W.P.(C) No. 13912 of 2015 has
secured the marks as follows:-
Sub. Subject Marks obtained
Code (Total)
301 English Core 095
041 Mathematics 095
042 Physics 095
043 Chemistry 095
083 Computer Science 095
048 Physical Education 072
Petitioner in W.P.(C) No.14096 of 2015 has secured
the marks as follows:-
Sub. Subject Marks obtained
Code (Total)
301 English Core 095
041 Mathematics 095
042 Physics 095
043 Chemistry 095
083 Computer Science 095
048 Physical Education 091
8. In order to find out what was the additional subject
taken by the petitioners, we called upon the petitioners
to obtain from the school authorities, as to the subject
opted as additional subject by the petitioners. The
petitioners filed the certificate given by the Principal,
Kendriya Vidyalaya, Bhubaneswar that both the
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petitioners have taken Physical Education as their
"additional subject". It is true that petitioner in W.P.(C)
No. 13912 of 2015 has secured 72% marks in Physical
Education, whereas the petitioner in W.P.(C) No. 14096
of 2015 has secured 91% marks in Physical Education.
9. In view of the clear scheme of the examination of
the CBSE no doubt the five subjects can only be taken as
qualifying subjects to pass Class-XII examination in
CBSE. It is also reported in (2002) 6 SCC 343 Kusum
Lata v. State of Haryana and others, where Their
Lordships have observed at paragraph-8 as follows:-
"8. As per the scheme of examination of
CBSE the marks obtained in the additional
subjects are not taken into consideration in
the passing of the examination. The
additional subject is optional. A candidate
may take it or not. The requirement is that a
candidate should obtain 33% marks or Grade
D-2 in each of the five subjects of external
examination as per the scheme of the
studies. When the eligibility clause stipulates
that a candidate should have passed 10+2
examination with at least 50% aggregate
marks, it is implicit that the aggregate marks
are required to be calculated keeping in view
only the subjects which are necessary to
pass 10+2 examination and not the marks of
the additional subject which is not taken into
account for passing the examination. This is
the only reasonable interpretation having
regard to the spirit of the clause providing for
eligibility conditions. The relevant factor is to
see what is necessary to pass 10+2
examination conducted by CBSE and on that
basis decide whether a candidate fulfils or
not the requirement of the eligibility clause.
If seen from this perspective, the aggregate
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marks would have to be worked out having
regard to the marks obtained in five subjects
and not in the additional subject which is not
taken into account for passing the
examination."
With due respect to the decisions we have no
doubt that in the SSC Examination (10+2 Examination)
conducted by the CBSE the aggregate marks would have
to be worked out having regard to the marks obtained in
five subjects and not in additional subject for passing the
examination. So in the case in hand having gone through
all the above documents we conclude that both the
petitioners have passed in five subjects (one language
and four elective) by acquiring 95% marks and their
additional subject is Physical Education.
10. It is strenuously contended on behalf of
opposite party No.2 (IISER) that in view of the
notification issued by the IISER that "all subjects" taken
by the candidates have to be taken into consideration. In
this respect, the examinations taken by the petitioners
are to be guided by the CBSE Regulations. The manner
in which an additional subject "shall be treated is found
from regulation 2.5(d)(ii)", which reads as under:-
"(d) In respect of a candidate offering an
additional subject, the following norms shall
be applied;
(ii) An elective subject offered as an
additional subject may replace one of the
elective subjects offered by the candidate.
It may also replace a language provided
after replacement the candidate has
English/Hindi as one of the languages."
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In view of the aforesaid regulation, it is clear
therefrom that when a candidate takes an "additional
subject", if the mark secured by the candidate in the
additional subject (which is an elective paper) is higher
than the marks obtained by the said candidate in other
elective papers, the candidate, would get the benefit of
the said higher mark in the additional subject by being
"replaced". In other words, the objective behind this
regulation is to encourage students to take additional
subjects and such additional subject would be of essence
and would assist such a candidate in securing better
average marks. This rule cannot be interpreted in a
manner detrimental to the interest of such candidates.
We are afraid we cannot accept the argument advanced
by opposite party No.2 to the contrary, since candidates
taking additional subjects cannot be penalized for having
taken "additional subjects". Consequently, we are of the
considered view that the object behind CBSE in allowing
a candidate to take an "additional subject" can only be
interpreted in a beneficial manner to such a candidate
and not to the candidates determent.
11. It is submitted by the learned counsel for the opp.
Parties that the information bulletin as supported by both
the parties reveal in the following manner:-
"2. Applicants seeking admission under State
and Central Boards (SCB) stream must meet
the criteria of minimum percentage cut-off
marks for eligibility. If their percentage in
Class 12 Board is less than the percentage
cut-off marks specified in the MINIMUM
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MARKS TABLE, then their application will not
be accepted. Please consider all subjects for
which numerical numbers have been
awarded to calculate the percentage."
12. Learned counsel for opposite party No.2-IISER in
his counter affidavit filed certain sample mark sheets of
candidates who have been considered for admission to
IISER and in such mark sheets those candidates have
appeared in a total of five subjects, in other words, those
candidates have not taken any additional subject.
In the case at hand, the petitioners, who appeared
in the selfsame CBSE examination have taken an
"additional subject". It is submitted on behalf of opposite
party No.2 that physical education is also an elective
subject and on this score there can be no dispute. But, it
is most important to note herein that the IISER while
considering the candidates, who have appeared in "five
subjects" have taken the marks of those five subjects
but, for the petitioners the opposite party No.2 appears
to be insisting upon taking into consideration the total
marks of "six subjects" (including the additional
subject)". This argument itself is fallacious, since a
candidate who has taken an additional extra subject is in
effect being penalized, since all six subjects have been
taken into consideration. This by itself is clearly
discriminatory vis-à-vis those who opted only for five
papers, Therefore, we are of the considered view that
the stand of opposite party No.2 to the aforesaid extent
(as noted hereinabove) is to be rejected out-right on the
ground of discrimination.
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13. No doubt the above circular shows that they are
considering the Class-XII Board Examination marks and
the word "all subjects" is no longer res integra in view of
the decision of the Hon'ble Apex Court in the decision
reported in (2002) 6 SCC 363 (supra), where
Their Lordships have observed in paragraph-11 as
follows:-
"11. The only difference in the marksheet
issued by CBSE is that it does not show total after
five subjects and in fact no total is shown. The
relevant consideration is not the manner of issue of
the marksheet or the different pro forma which
may be adopted by one board or the other but to
go into the real object behind the clause. As
already stated, the object of the clause prescribing
the eligibility condition is that the qualifying
examination shall be passed by a candidate with at
least 50% marks. A candidate on securing
requisite marks would pass without taking the
sixth subject. There would have been no difficulty
if the pro forma of CBSE was similar to the one
adopted by Haryana. In that eventuality, it would
not have been possible to decline admission to the
appellant on the ground for her not satisfying the
minimum prescribed percentage under the
eligibility condition. This kind of approach would be
arbitrary and discriminatory. Thus, the
interpretation placed by the High Court is
hypertechnical and erroneous. We are unable to
sustain the said interpretation. The appellant
satisfies the eligibility stipulation and the
respondents committed serious illegality in
declining her admission to D.Ed. Course."
14. With due respect to the decision we are of the
considered view that the opp. Parties must go to real
object behind the clause to consider the marks of all
subjects to find out the cut-off marks in Class-XII Board
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Examination. Similar to the facts of the present case, the
facts are also dealt in Kusum Lata case (supra). Since
the decision of Hon'ble Kerala High Court in Ejaz Ashraf
Vs. Union of India and others (supra) relied on by
opposite party No.2 has not placed reliance on Kusum
Lata case (supra) of Hon'ble Apex Court, decision of
Hon'ble Kerala High Court is not binding. CBSE being the
major organization conducting examination whose pass
out are considered for higher education should be
considered by the IISER prominently. The subjects
required for securing cut-off marks as appears in
Annexure-1 of the counter filed by opp. Party no.2
means the five subjects chronologically maintained in the
mark sheet of the respective petitioners and in those
subjects they have secured 95% marks and the
additional subject is Physical Education should not be
taken in consideration to calculate the cut-off marks
because it is the sixth and "additional subject" not meant
for pass criteria and in the circumstances of this case
"replacement" as contemplated under Rule 2.5(d)(ii) of
Annexure-A/3 does not come in to play. The word "all
subjects" appearing in Annexure-1 of IISER means
subjects required to pass CBSE Examination or any other
equivalent Examinations. We therefore, observe that the
criteria for admission to IISER, 2015 do not contain sixth
subject, but it only contain the five subjects as required
as pass criteria under CBSE Examination for the
petitioners to get their admission. Point is answered
accordingly.
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CONCLUSION
15. Since we are of view that both the petitioners have
secured 95% marks in one language and four elective
subjects to clear SSC Examination under CBSE and they
have qualified in the tests as per the Annexures, they
have right to be admitted in the IISER courses applied
for. So refusal of admission of petitioners to IISER
courses by opp. parties 1 and 2 is illegal and improper.
We therefore, direct the opp. Parties 1 and 2 to admit
the petitioners in BS-MS dual course at their respective
choice places within a period of two weeks.
Interim orders stand vacated.
The writ petitions are allowed accordingly.
..................................
Dr. D.P. Choudhury, J
I. MAHANTY, J.I agree.
.................................. I. Mahanty, J Orissa High Court, Cuttack Dated the 5th October, 2015/ DNP 14