Board of
School Education Vs. Arun Rathi [1994] INSC 105 (9 February 1994)
Agrawal, S.C. (J) Agrawal, S.C. (J) Venkatachalliah, M.N.(Cj)
CITATION:
1994 AIR 2336 1994 SCR (1) 741 1994 SCC (2) 526 JT 1994 (2) 128 1994 SCALE
(1)519
ACT:
HEAD NOTE:
The Judgment
of the Court was delivered by AGRAWAL, J.- Special leave granted.
2.
Heard learned counsel for the parties.
3.
These appeals raise the question whether a candidate who has taken the Senior
Secondary Certificate Examination of the Board of School Education, Haryana
(hereinafter referred to as 'the Board') is entitled to the award of grace
marks so as to enable him to earn compartment. The respondents in these appeals
appeared in the Senior Secondary Certificate Examination of the Board held in
the month of March 1993 but were declared as failed since they did not secure
the minimum pass marks in two of the subjects. They moved the High Court of
Punjab & Haryana, by filing writ petitions under Article 226 of the
Constitution and claimed that they should be awarded grace marks and be placed
under compartment, so as to enable them to appear in the supplementary
examination in one paper in September 1993. The said writ petitions have been
allowed by the High Court by orders dated September 6, 1993 and September 10, 1993.
4. The
Board has been constituted under the provisions of the Haryana Board of School
Education Act, 1969 (hereinafter referred to as 'the Act'). In exercise of the
powers conferred by Section 19(1) of the Act the Board has made the Haryana
Senior Secondary Certificate Examination Regulations, 1990 (hereinafter
referred to as 'the Regulations'). Regulation 26 of the Regulations contains
the provisions for awarding of 1% of the aggregate of marks as grace marks to
the candidates appearing in 10+2 examination to be conducted by the Board. The
said Regulation reads as under:
"26.
Grace marks- (a) If a candidate fails in one or more subject(s) and the total
deficiency is not more than one per cent of the aggregate of marks, he will be
awarded the required grace marks (that can be distributed among any number of
subjects) provided, the grace marks awarded in practicals do not exceed the
marks actually obtained by the candidate in the practical examination.
(b) A
candidate shall not be entitled to the benefit of grace marks to earn
compartment though he shall be entitled to the grace marks to pass the
compartment examination to the extent of one per cent of the maximum marks
allotted to the examination.
(c) A
candidate appearing in a subject(s) for improvement in his previous performance,
will not be entitled to grace marks.
(d) A
candidate appearing in one or more additional subjects shall also be eligible
for grace marks up to 1% of the aggregate of the total marks allotted to the
papers."
5. In Naresh
Shosi v. Punjab School Education Board' the High Court considered Regulation
16(b)(1) of the Punjab School Education, Board Senior Secondary Certificate
Examination Part-I, Regulations, 1988 wherein 1 CWP No.9760o f1989, decided on
Sept.15,1989(P&H,DB) 528 provision was made for award of grace marks.
In the
said Regulations there was no provision similar to clause (b) of Regulation 26
of the Regulations whereunder the benefit of grace marks cannot be given to
earn compartment.
The
High Court has pointed out that the duty of holding the Senior Secondary
Certificate Examination was being performed by the Punjab University and the
said work had been transferred to the Punjab School Education Board only
recently. After referring to Regulation 27(1) of the General Regulations for
Examinations contained in Chapter III of the Punjab University Calendar Volume
II, 1984 wherein provision was made for award of grace marks and it was also
provided that grace marks be also awarded to a candidate if by awarding such
grace marks he could earn exemption or compartment in subject/s and part/s, the
High Court has observed that it was difficult to believe that merely by
transfer of work of holding the examination from the University to the Punjab
School Education Board, the benefit of award of grace marks would be denied in
the case of I compartment' candidates and its applicability would be restricted
to the candidates only to enable them to pass the examination. It was,
therefore, held that Regulation 16(b)(1) of the Punjab School Education Board
Senior Secondary Certificate Examination Part-I, Regulations, 1988 shall apply
to the cases of compartment candidates also and grace marks shall be awarded to
a candidate if by awarding such marks he can earn exemption or compartment in
subject/s and part/s. It was observed that if the regulation was capable of the
interpretation that grace marks could not be awarded to a candidate if by
awarding such marks he can earn compartment then the regulation would be held
to be arbitrary and discriminatory.
6.
Following the said decision a Division Bench of the High Court in Anil Kumar v.
Board of School Education, Haryana2 directed the Board to award grace marks so
as to entitle the petitioner in that case to earn a compartment. The Court
rejected the contention urged on behalf of the Board that the decision in Naresh
Shosi case' was not applicable in view of the express provision regarding
non-award of grace marks in the Regulations of the Board.
7.
Thereafter in Vishal Kumar v. State of Haryana3 a Single Judge of the High
Court, relying upon the observations made in Naresh Shosi case' held that
Regulation 26(b) of the Regulations, insofar as it debars a failed candidate to
the entitlement of the benefit of grace marks in order to earn compartment is
arbitrary and violative of Articles 14 and 16 of the Constitution.
8.
After the decision in Anil Kumar case2 the Board, at its meeting held on
September 26, 1990, decided that 10+2 candidates who had appeared in March 1990
annual examination but had failed, be given the benefit of grace marks to earn
compartment as per the said decision and the candidates whose 2 Civil Misc. No.
6963 of 1990 and Writ Petition (Civil) No. 9164 of 1990, decided on Aug. 18,
1990 (P & H, DB)3 Writ Petition (Civil) No. 14021 of 1990, decided on Dec.
3, 1991 (P & H) 529 results are liable to be revised be intimated that they
can apply to be placed in compartment in the supplementary examination 1990. It
was also decided that a proposal to carry out amendment in the relevant
Regulations be considered in the next meeting of the Board. It appears that the
Board also proposed an amendment in Regulation 26 in the light of the decision
of the High Court in Anil Kumar case2 and the same was forwarded to the State Government
for approval.
9. The
question whether the concession of grace marks could be given to students for
earning compartment came up for consideration before a Full Bench of the High
Court in Raj Kumar v. State Board of Technical Education, Punjab4 in the
context of Rule 21 of the Examination Rules of the State Board of Technical
Education, Punjab, for Pharmacy course. The said rule was silent about the
concession of grace marks being given to students for earning compartment. The
Full Bench construed the rule as meaning that grace marks shall be given only
to those students who by getting the same are able to pass in all the subjects.
Rejecting the contention that the absence of a provision regarding concession
of grace marks for earning compartment though a provision is made about the
grant of grace marks for passing out the examinations, renders the rule
discriminatory, the Full Bench has observed "Moreover, the intention of
the rule-framers that the students of 1st year should get more than one chance to
pass the preliminary examination can well be gathered from a plain reading of
the rules and once the more beneficial provision has been made by providing
supplementary examination for a student who is unable to pass out examination,
no grievance can possibly be made that the rules should be held discriminatory
only because no provision has been made for the grant of concession of grace
marks to the students for the purpose of earning compartment."
10.
Recently another Full Bench of the High Court in Anita Devi v. State of
Haryana5 has considered the question of confining the award of grace marks only
to a candidate who can pass the examination but not if he is placed in
compartment in connection with the examinations for awarding of Diploma in
Education at the Government Elementary Teachers Training Institute, Bhiwani. In
the relevant provisions there was an express prohibition to the effect
"that the candidates cannot be placed in the compartment by awarding grace
marks". The validity of the said provision was assailed as being violative
of Article 14 of the Constitution and reliance was placed on the decision in Naresh
Shosi case'. The said contention was, however, rejected and it was held that
the view taken in Naresh Shosi case' as well as in Vishal Kumar case3 is not
correct and both these decisions have been overruled. The Court has agreed with
the earlier Full Bench decision in Raj Kumar case4. It has been observed 4
(1990) 2 Punj LR 179, 185 5 (1993) 2 Punj LR 157 530 "The academic
standards laid down by the appropriate authorities postulate the minimum marks
that a candidate has to secure before he becomes eligible for the award of the
diploma.
The
award of grace marks is a concession. It results in diluting academic
standards. A rule for the award of grace marks has to be construed strictly so
as to ensure that the minimum standards are not allowed to be diluted beyond
the limit specifically laid down by the appropriate authority. It is only in a
case where the language of the statute is absolutely clear that the claim for
the award of grace marks can be sustained. Normally, the Court shall be slow to
extend the concession of grace marks and grant a benefit where none is intended
to be given by the appropriate authority."
11.
Before the said decision in Anita Devi case5 the provisions of Regulation 26
came up for consideration before a Full Bench of the High Court, Punjab & Haryana
in Meenakshi Sharma v. Board of School Education, Haryana6. In that case the
petitioner could qualify only in four subjects out of five subjects and was
placed under compartment in the subject of English Core. She availed the first
chance but could not clear the compartment. She appeared for the second time in
March 1991 and secured 29 marks out of 100, against the pass percentage of 33.
The question for consideration was whether the award of grace marks was
restricted only to the extent of 1% of the maximum marks allotted to the
subject concerned or 1% of the total aggregate marks of all the five subjects. Relying
upon the decision of this Court in Punjab University, Chandigarh v. Sunder Singh7 the High Court has held that the grace
marks could be awarded only to the extent of 1 % of the total marks of the
subject(s) alone in which the candidate reappears. In that case the validity of
Regulation 26 had also been challenged on the ground that it was arbitrary.
Negativing
the said contention it was held :
"So
far as the challenge to the vires of Regulation 26 ibid is concerned, we do not
find any constitutional or legal infirmity or any arbitrariness in the said
regulation.
Obviously,
the intention of the legislature and the object of the legislation, were only
to promote the interest of education by requiring the students to achieve
success in the examination on the basis of their own performance and not by
depending on the grace of the examining bodies. The object underlying the grant
of grace marks is to remove the real hardship to a candidate who has otherwise
shown good performance in the academic field but is somehow losing one year of
his scholastic career for the deficiency of a mark or so in one or two
subjects, while on the basis of his overall performance in other subjects, he
deserves to be declared successful. The consideration being a laudable one,
Regulation 26 is neither arbitrary nor unfair or unjust. In fact, it seeks to
lay emphasis on the excellence in the field of education; hence, deserves to be
upheld." 6 Writ Petition (Civil) No. 1802 of 1992, decided on July 21, 1992 7 1984 Supp SCC 239: (1984) 3 SCR
31 531
12.
The Board, in its meeting held on April 23, 1993, taking note of the decision
in Meenakshi Sharma case6 wherein Regulation 26 has been held to be valid,
decided that withdrawal of the benefit given to the candidates who had already
been granted the benefit of 1% grace marks to earn compartment on the basis of
the decision taken by the Board on September 26, 1990 and December 21, 1990
pursuant to the earlier judgment in Anil Kumar case2 would not. be justified
but the judgment of the High Court in Meenakshi Sharma case6 should be made
applicable from the examination in March 1993 and onwards, and that the result
of the Senior Secondary Certificate Examination in March 1993 would be declared
giving the benefit of 1% grace marks only to pass the examination. As a result
of the said decision, the Board did not give the benefit of 1% grace marks to
the respondents so as to enable them to be placed under compartment.
13. In
allowing the writ petitions of the respondents the High Court has proceeded on
the basis that prior to April 1993 the Regulation 26(b) provided for award of
grace marks to earn compartment and the Board has been acting on the said
Regulation since December 1990 till April 1993 and the students were awarded
grace marks and were placed under compartment but after April 1993 the Board
has amended the Regulations to the effect that no grace marks would be granted
for placing the students under compartment.
According
to the High Court the respondents took the examination in March 1993 when the
Regulation providing for grant of grace marks to the students was in operation
and was being acted upon by the Board and the students acted on the basis of
the said Regulations and took the examination and though the Board had amended
the Regulation in question on April 23, 1993 before declaration of the result
yet the right accrued to the students could not be permitted to be taken away
by giving retrospective effect to the Regulation and the amended Regulation, in
view of the Full Bench decision, has to come into operation only with regard to
the students who took examination after the Regulation had been amended. The
High Court has also observed that the Board was estopped by its act and conduct
in denying grace marks to the respondents for placing them under compartment
particularly when it had acted on the said Regulation for almost three years
and granted the said concession to the students who had taken examination under
the said rule.
14. Shri
Bachawat, the learned Senior Counsel appearing for the Board, has submitted
that the High Court has proceeded under an erroneous impression that Regulation
26 had been amended by the Board on April 23, 1993 after the decision in Meenakshi
Sharma case6. The learned counsel has pointed out that on April 23, 1993 the
Board had taken note of the decision in Meenakshi Sharma case6 and had decided
to drop the amendment which had been proposed in the light of the decision in
Anil Kumar case2 and had been sent to the State Government for its approval and
that on April 23, 1993 the Board had decided to enforce Regulation 26(b), as
originally framed, with effect from the Senior Secondary Certificate
Examination March 1993 since the Board did not wish to withdraw the benefit of
1% of 532 grace marks to earn compartment which had been granted to students
taking earlier examinations. This contention is fully borne out by the
proceedings of the meeting of the Board held on April 23, 1993 which show that
in compliance with the decision of the High Court in Anil Kumar case2 the Board
started giving 1% grace marks even to a failed candidate to enable him to earn
compartment with effect from the examinations held in November 1990 in
anticipation of the sanction of the State Government to the proposal to amend
Regulation 26(b). The said proceedings indicate that sanction of the State
Government had not been received till the date of the meeting of the Board. The
proceedings of the meeting dated April 23, 1993, also show that having regard
to the decision in Meenakshi Sharma case6 wherein Regulation 26(b) has been
upheld, the Board concluded that 1% grace marks are not to be given to earn
compartment but it decided that it would not be justified to withdraw the
benefit of 1% grace marks that has already been granted to the candidates and
that the judgment of the High Court in Meenakshi Sharma case6 should be made
applicable from the examination of March 1993 and onwards. The proceedings show
that prior to April 23, 1993 the Board had been following the law as laid down
by the High Court in Anil Kumar case2 but on April 23, 1993, in accordance with
the subsequent decision of the Full Bench in Meenakshi Sharma case6 the Board
decided to enforce Regulation 26(b), as originally framed, with effect from the
Senior Secondary Certificate Examination March, 1993. There was no amendment in
Regulation 26(b) at any stage because the approval of the State Government to
the amendment proposed by the Board in the said Regulation after Anil Kumar
case2 had not been received by the Board till April 23, 1993 and, therefore,
there is no question of the Board having changed the rules with retrospective
effect on April 23, 1993. It cannot be said that the respondents had acquired
any right to award of grace marks to earn compartment prior to the decision of
the Board dated April
23, 1993 and,
therefore, there is no question of deprivation of any right which had vested in
the respondents. Nor can the principle of estoppel be invoked to preclude the
Board from enforcing the provisions of Regulation 26(b).
15.
The learned counsel for the respondents has, however, submitted that in Meenakshi
Sharma case6 the Court was not dealing with the question regarding giving
benefit of grace marks to earn compartment and the question for consideration
before the Full Bench was with regard to the basis for computing 1% grace marks
to be awarded to a candidate who had been placed under compartment and who had
appeared in the supplementary examination. It is submitted that the validity of
Regulation 26 had been challenged in the said case in the light of the said
question and that the decision in Meenakshi Sharma case6 negativing the said
challenge cannot be construed as upholding the validity of Regulation 26(b)
which prohibits award of grace marks to earn compartment. It has been urged
that since in Meenakshi Sharma case6 the validity of Regulation 26(b), insofar
as it prohibits giving the benefit of grace marks to earn compartment has not
been considered, the Board was in error in placing reliance on Meenakshi Sharma
case6 to take the decision on April 23, 1993 to discontinue the practice of
awarding grace marks to earn compartment which was being followed since
November 1990 in view of the decision in Anil Kumar case2.
16. It
is no doubt true that in Meenakshi Sharma case6 the Full Bench of the High
Court was considering the question as to the mode of computing the benefit of
1% grace marks to be given to a candidate who had been placed under compartment
and who had appeared in one subject only and the High Court was not required to
consider the question whether benefit of grace marks should be given to earn
compartment and the validity of Regulation 26, as being discriminatory, was
also assailed in the said context. But we find that while negativing the
challenge to the validity of Regulation 26 the Full Bench has considered
Regulation 26 in its entirety and having regard to the intention of the
Legislature and object of the legislation, namely, to promote the interest of
education by requiring the students to achieve success in the examination on
the basis of their own performance and not by depending upon the grace marks of
the examining bodies, the High Court has held that Regulation 26 is neither
arbitrary nor unfair or unjust. These observations apply to all the clauses of
Regulation 26 including clause (b). For like reasons a Full Bench of the High
Court in Anita Devi case5 upheld a provision similar to Regulation 26(b) which
provided that grace marks shall not be awarded to enable a candidate to be
placed under compartment.
Moreover
the judgment in Meenakshi Sharma case6 has to be read with the earlier judgment
of the Full Bench of the High Court in Raj Kumar case4 wherein the Court did
not accept the contention that a rule which did not provide for grant of grace
marks to enable a candidate to earn compartment was arbitrary and
discriminatory.
17. In
these circumstances, it cannot be said that the Board at the meeting held on
April 23, 1993 committed any error in proceeding on the basis that Regulation
26(b) has been held to be valid by the High Court in Meenakshi Sharma case6 and
in deciding to enforce Regulation 26(b) with effect from the Senior Secondary
Certificate Examination of March 1993 and in declaring the result of the said
examination in accordance with the said 'Regulation'.
18.
The High Court, in the judgment under appeal, was in error in interfering with
the decision taken by the Board at its meeting held on April 23, 1993, to
enforce Regulation 26(b), as originally framed, with effect from the Senior
Secondary Certificate Examination March, 1993 and to deny to the respondents
the benefit of grace marks to earn compartment. The judgment of the High Court
cannot, therefore, be upheld and must be set aside.
19.
Since the respondents may have proceeded on the basis that they would be placed
under compartment and they would not be required to appear in regular
examination in all the papers in accordance with the judgment of the High Court
and they may not have taken steps to register themselves as students for the
regular examination in all the subjects, it is 534 but appropriate that the
Board should permit them to appear in the regular examinations in all the
subjects without insisting upon their complying with the requirements regarding
attendance, etc.
20. In
the result the appeals are allowed, the judgment and order of the High Court
dated September 6, 1993 and September 10, 1993 are set aside and writ petitions
filed by the respondents in the High Court are dismissed. The respondents will,
however, be permitted to take the next Senior Secondary Certificate Examination
to be conducted by the Board in all the five subjects without their being
required to fulfil the requirements of regulations relating to attendance, etc.
No order as to costs.
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