The Maharashtra State Board of Secondary & Higher Secondary Vs. Amit & Anr
[2002] Insc 284 (9 July
2002)
N. Santosh
Hegde, Bisheshwar Prasad Singh. Bisheshwar Prasad Singh, J.
Special
Leave granted.
The
appellant, the Maharashtra State Board of Secondary Education is a Board
constituted under the Maharashtra Secondary and Higher Secondary Boards Act,
1965. In this appeal, the appellant has impugned the judgment and order of the
High court of Judicature at Bombay, (Aurangabad
Bench) dated September
3, 2001 in Writ
Petition No.3131 of 2001, whereby the High Court allowed the Writ Petition
preferred by respondent No.1 herein and directed the Board to declare the
petitioner as having passed the examination. The High Court took the view that
under sub-clause 2(d) under Note 1 of Clause (3)(a) of Regulation 52, the
respondent No.1 was entitled to the grant of 20 grace marks with the result
that the marks obtained by him in the subject Mathematics would be 39, he
having secured 19 marks in the examination. Consequently, the respondent No.1
having obtained 39 marks in the subject Mathematics with the addition of grace
marks, would be entitled to the further benefit under sub-clause (3) of Note 2
of Clause (3)(a) of Regulation 52, having secured more than 105 marks in the
subjects Mathematics and Science taken together and therefore entitled to the
benefit of combined passing in the subjects Mathematics and Science under the
said provision.
We may
first notice the facts which are not in dispute.
Respondent
No.1, who was a student of Saraswati Bhuvan School took the Secondary School Certificate Examination conducted
by the Aurangabad Divisional Board in March, 2001. On June 2, 2001 the results
were declared but respondent No.1 was declared to have failed, since he had obtained
only 19 marks in the subject Mathematics as against a minimum of 52 marks which
a candidate is required to obtain under the Regulation for passing in that
subject.
Respondent
No.1, then applied to the Board for the grant of 20 grace marks under sub-clause
2(d) under Note 1 of Clause (3)(a) of Regulation 52 on the ground that he had
participated in sports at the State level. It appears that the respondent No.1
had participated in the "Kho Kho" competition at the State level.
The
application of respondent No.1 was rejected and the decision was conveyed by
the Divisional Secretary of the Aurangabad Division Board to the Head of the
school stating that even with the addition of 20 grace marks, respondent No.1
could not be declared to have passed, since he failed to secure 52 marks in the
subject Mathematics, even with the addition of grace marks.
Aggrieved
by the decision of the Board the respondent No.1 preferred a Writ Petition
before the High Court, wherein he claimed benefit under sub-clause 2(d) under
Note 1 of Clause (3)(a) of Regulation 52 as also the benefit under sub-clause
(3) of Note 2 of Clause (3)(a) of the said Regulation. In substance, his case
was that after adding 20 grace marks to the marks actually obtained by him in
Mathematic i.e. 19, he should be deemed to have obtained 39 marks in the
subject Mathematics and therefore entitled to the benefit of combined passing
in the subjects Mathematics and Science, since he had secured more than 105
marks in the subjects Science and Mathematics taken together. The High Court
upheld the contention of respondent No.1 which is challenged before us by the
Board.
The
Board has framed Regulations, and Regulation 52 lays down the standard for
passing in a subject. A close scrutiny of Regulation 52 discloses that it lays
down comprehensively the rules relating to the minimum marks to be secured by a
candidate for passing the examination, the grace marks which may be granted to
a candidate in given circumstances, and the manner of calculation of such
marks.
However,
before adverting to the provisions of the aforesaid Regulation, we consider it
appropriate to notice the principles which the Court has to keep in mind while
dealing with a case of this nature where grace marks are claimed under the
relevant Regulations. It cannot be disputed that the academic standards are
laid down by the appropriate authorities which postulate the minimum marks that
a candidate has to secure before the candidate can be declared to have passed
the examination. The award of grace marks is in the nature of a concession, and
there can be no doubt that it does result in diluting academic standards. 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
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 appropriate authorities may
also provide for grant of grace marks to a candidate who has taken part in
sports events etc., considering the fact that such candidates who have obtained
a level of proficiency in any particular game or event may have devoted
considerable time in pursuit of excellence in such game or event. However, a
rule for the award of grace marks must 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. (See
Board of School 526).
We
shall now proceed to consider Regulation 52 on which both parties have placed
reliance. Regulation 52 in so far as it is relevant reads as follows:-
"52. Standard for passing in a subject To pass the Secondary School
Certificate Examination, a candidate must secure at least 'C' Grade in each of
the optional and School Certificate subject offered by the candidate.
In the
case of the Optional Technical subjects (Branch 2) wherein the examination is
taken by the Board, candidate must obtain minimum 35% marks. In the case of
three language heads and Social Sciences which have been allotted the maximum
of 100 marks each, a candidate must obtain at least 35 marks in each of them
and in the case of Mathematics and Science, which have been allotted the
maximum of 150 marks each, a candidate must obtain at least 52 marks in each.
(2) In
a subject for which there are more than one papers or practicals, the marks
will be added together for a 'pass' in the subject.
(3)(a)
Candidates appearing without claiming exemption or exemptions shall be granted
automatic condonation of marks if their deficiency for the purpose of passing
in a subject or subjects is upto 2 or 3 marks as detailed below:
Subject
Automatic Condonation of Marks admissible upto
(i)
First Language 2
(ii)
Second Language 2
(iii)
Third Language 2
(iv)
Social Sciences 2
(v)
Mathematics 3
(vi)
Science 3
(vii)
Mathematics and 6 Science (while applying combined passing provision)
(viii)
Two subjects offered 2 in each by Deaf and Dumb subject candidates in lieu of
two languages Note: (1) If more marks are required than the limit of marks
indicated above for the purpose of passing in a subject or subjects automatic condonation
of marks shall not be granted in the subject or subjects.
(2)(a)
Subject of the condition prescribed in sub-clause (a) of clause (3), candidates
may get the benefit of automatic condonation of marks in one or more compulsory
subject or subjects.
(b)
The candidates shall also be granted for the purpose of passing in the
remaining compulsory subjects of failure (wherein the deficiency is more than
the limit of 2 or 3 marks indicated in clause (3)(a) above upto the maximum of
20 grace marks limited to three subjects only subject to the condition that in
any one subject not more than ten percent (of the maximum marks for that
subject) grace marks shall be granted.
(c)
Notwithstanding anything contained in sub-clause (b) (above), in the case of
blind or deaf and dumb or physically handicapped or spastic candidates, the
limit of maximum 10 per cent grace marks shall be extended upto 20 grace marks.
(d)
Notwithstanding anything, contained in sub-clause (b) (above), a candidate who
has actually participated in any sports or games held in India or abroad or
State, National, International level in the same academic year, the limit of
maximum 10 per cent grace marks shall be extended upto 20 grace marks, provided
such request is made by the candidate concerned through the respective head of
the secondary school, so as to reach to the Divisional Secretary of the
Divisional Board concerned upto one month from the date of the declaration of
results. All such applications shall invariably be submitted in a prescribed
form along with a certificate of the District Sports Officers, to that effect,
to the Divisional Secretary of the Divisional Board concerned".
Clauses
(e) and (f) are in substantially the same terms as Clause (d) and grant similar
benefit of grace marks to candidates who have actually participated in the
Republic Day Parade, President's Rally etc.
Then
follows Note 2 which reads as under:-
"Note
2: (1) Candidate may get the benefit of both the provisions made under sub-
clauses (a) and (b) of Note 1, sub-clause (2) of clause (3) but not in one and
the same subject.
(2) No
automatic condonation of marks or the grace marks shall be granted to a
candidate who does not pass the examination even after applying the provisions
made in sub-clause (a) and (b) of Note 1, sub-clause (2) or both these
provisions of clause (3).
(3)
Notwithstanding anything contained in clauses (1), (2) and (3) (a), a candidate
obtaining not less than 105 marks in the subjects Mathematics and Science taken
together at one and the same Secondary School Certificate examination, and
obtaining not less than 38 marks in the subject or subjects of failure shall be
entitled to the benefit of combined passing in the subjects Mathematics and
Science.
(b)
Candidates appearing with exemption shall be granted automatic condonation of
the marks for the purpose of passing as detailed below:
The
automatic condonation of 13 marks shall be granted to a candidate at the
Secondary School Certificate examination in proportion to the number of
subjects of failure but not exceeding 3 marks in any one of the subject as per
the following schedule:- No. of subjects Condonation marks Admissible 1 3 2 5 3
8 4 10 5 13 Note 3: A candidate appearing with exemption in either Mathematics
or Science shall not be entitled to the benefit of combined passing in Science
and Mathematics.
Note
4: A candidate appearing with exemption in other subject or subjects, and
appearing in Mathematics and Science at one and the same examination shall be
entitled to the benefit of automatic condonation marks to the extent of 5 marks
for the purpose of Secondary School Certificate while applying rule of combined
passing.
(4) No
condonation marks or grace marks shall be given in technical or other optional
subjects of failure".
A
close scrutiny of the scheme of Regulation 52 discloses that under Clauses (1)
and (2) of Regulation 52 the minimum passing marks in each subject has been
prescribed.
The
Regulation in clear terms provides that in the subjects Mathematics and Science
(which have been allotted maximum 150 marks each) a candidate must obtain at
least 52 marks in each subject.
Clause
3(a) provides for grant of automatic condonation of marks. The extent to which
such automatic condonation may be granted for the purpose of passing the
subject is laid down therein. In the subjects Mathematics and Science (while
applying combined passing provision) automatic condonation of six marks is
admissible. The automatic condonation of three marks in each subject separately
is admissible. So far as the case of the appellant is concerned, there is no
dispute that he secured only 19 marks in Mathematics and 112 marks in Science.
Under the provision for grant of automatic condonation, he would be entitled to
three marks in the subject Mathematics which would not enable him to secure the
passing marks. Sub- clause 2(b) of Clause (3)(a) gives an additional benefit to
the candidates for the purpose of passing in the remaining compulsory subjects
of failure, wherein the deficiency is more than the limit of 2 or 3 marks as
indicated in Clause 3 (a) upto the maximum of 20 grace marks, but subject to
the condition that it shall be limited to three subjects only, and that in any
one subject not more than 10% of the marks for that subject shall be granted.
Under sub clause (d) the maximum 10% grace marks has been extended upto 20
grace marks for a candidate who has actually participated in any sports or
games held in India or abroad at State, National or International level in the
same academic year. The respondent No.1 claimed the benefit under Sub-clause
(d), and it is not in dispute that he is entitled to that benefit. Even so the
respondent No.1 would have secured only 39 marks after grant of 20 grace marks
in the subject Mathematics as against 52 which is the prescribed minimum
passing marks.
The
case of the respondent No.1, however, is that once 20 grace marks are added to
the marks obtained by him in the subject Mathematics, it should be held that he
has actually secured 39 marks in that subject. He then relies on Note 2 sub
clause (3) and submits that since the marks obtained by him in Mathematics
added to the marks obtained by him in Science is more than 105, he is entitled
to the benefit of combined passing in the subjects Mathematics and Science.
Learned
counsel for the appellant on the other hand submitted that sub clause (3) of
Note 2 which refers to "a candidate obtaining not less than 105
marks" refers to the marks actually obtained by the candidate on the basis
of his performance in the examination and not the marks deemed to have been
obtained by him after granting grace marks. She submitted, and in our view
rightly, that sub-clause (3) of Note 2 is unambiguous, and permits of no
confusion or controversy. The Regulation clearly makes a distinction between
marks "granted' and marks "obtained". Whenever the Regulation
refers to the marks obtained by a candidate, it refers to the marks awarded to
him on the basis of his performance in the examination. But whenever it refers
to marks granted, it refers to the grace marks which are given to the candidate
as a matter of concession. She, therefore, submitted that the benefit of sub
clause (3) of Note 2 may be given only to a candidate who has actually obtained
in the examination 105 marks in the subjects Mathematics and Science taken
together and not less than 38 marks in the subject of failure. So far as the
appellant is concerned, for the purpose of sub clause (3) of Note 2, he should
be considered to have obtained marks less than 38 in the subject of failure
namely, Mathematics since he actually secured only 19 marks. We find
considerable force in the submission urged on behalf of the appellant and it
must be upheld.
Regulation
52 refers to the passing marks which a candidate "must obtain" or
"must secure". Clause (3)(a) which deals with grant of automatic condonation
uses the words "shall be granted automatic condonation of marks".
Similarly under Clause (b) of sub-clause (2) of Regulation 3(a) the words used
are "shall also be granted" Clauses 'c' to 'f' only extend the grace
marks upto 20. Under Note 2 sub clause (2) which deals with automatic condonation
of marks, reference is to the marks "granted". The scheme of the
Regulation is therefore quite clear and it clearly makes a distinction between
marks "obtained" or "secured" and grace marks
"granted". In the light of this, if we consider sub-clause (3) under
Note 2 it would be apparent that the said Sub-clause does not at all deal with
grant of grace marks. Regulation 52 is a comprehensive provision and sub-clause
(3) under Note 2 only deals with the grant of benefit of combined passing in
the subjects Mathematics and Science. It begins with a non- obstante clause and
lays down a special rule notwithstanding anything contained in Clauses (1), (2)
and (3)(a) of Regulation 52. It clearly implies that even if a candidate would
have otherwise failed having regard to the provisions of Clauses (1) and (2),
despite grant of grace marks under Clause (3)(a), yet under sub- clause (3) of
Note 2 he is entitled to the benefit of combined passing in the subjects
Mathematics and Science, provided he has obtained not less than 105 marks in
the aforesaid two subjects taken together, while obtaining not less than 38
marks in the subject or subjects of failure. We have already held that
obtaining of not less than 38 marks refers to the marks actually obtained by a
candidate in the examination on the basis of his performance, and without
addition of grace marks. So construed sub-clause (3) of Note 2 does not confer
any benefit on a candidate like respondent No.1 who secured only 19 marks in
the subject Mathematics, and therefore, does not fulfil the second condition.
We have therefore no hesitation in holding that sub clause (3) of Note 2
confers no benefit on the respondent No.1 since he is not eligible thereunder
for the benefit of combined passing, having secured less than 38 marks in the
subject Mathematics. The High Court was clearly in error in extending to the
respondent No.1, the benefit under the aforesaid provision.
We,
therefore, hold that the High Court was in error in allowing the writ petition
of Respondent No.1.
Consequently,
we allow the appeal and set aside the impugned judgment and order of the High
Court and dismiss the Writ Petition filed by respondent No.1. We are informed
that the respondent later re-appeared in the examination and has been declared
to have passed the examination.
Before
parting with the judgment we may observe that the grant of grace marks being a
matter of concession and which tends to dilute academic standards, Regulations
dealing with grant of grace marks should not be generously and liberally
construed. We have noticed that several concessions are given to candidates by
way of grace marks.
A
candidate may qualify under different Clauses of the Regulation for the grant
of grace marks. It is doubtful if a candidate can claim grace marks under more
than one Clause even if he may be eligible for the concession under several
Clauses. It has been contended before us with considerable force that a
candidate may be granted grace marks under only one of the Clauses under the
relevant Regulation, and that in no case shall he be entitled to the award of
grace marks under more than one Clause even if under the Regulation he may be
eligible for grant of grace marks under more than one Clause. It is quite
possible that a candidate may have taken part in games at the State level and
may have also participated in the Republic Day Parade and in the President's
Rally, which are covered by sub-clause (d) (e) and (f) of Clause (2) under Note
1. If the benefit under all the three clauses is extended to a failing
candidate, it would really reduce the examination conducted by the Board to a
mockery.
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