Court No. - 33
Case :- WRIT - C No. - 32173 of 2017 Petitioner :- Prince Singh And 6 Others Respondent :- Union Of India And 8 Others Counsel for Petitioner :- Hriday Narayan Pandey Counsel for Respondent :- C.S.C.,A.S.G.I., Hridai Narain Pandey, Pramod Kumar Pandey With Case :- WRIT - C No. - 31845 of 2017 Petitioner :- St. Xavier's Inter College, Jaunpur And Another Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Shashi Ranjan Srivastava Counsel for Respondent :- C.S.C.,A.S.G.I.,Anant Kumar Tiwari, Hridai Narain Pandey, Rajiv Joshi With Case :- WRIT - C No. - 44572 of 2017 Petitioner :- Smita Singh And 4 Others Respondent :- Union Of India And 6 Others Counsel for Petitioner :- Mehul Khare Counsel for Respondent :- C.S.C., A.S.G.I., Hridai Narain Pandey
Hon'ble Manoj Misra,J.
All the above three petitions seek declaration of result of CBSE- Class-XII, 2017 Examinations of those students who had appeared for both U.P. Board - 2017 (Class XII) as well as CBSE-2017 (Class-XII) examinations as regular student of St. Xavier's Inter College, Jaunpur.
As common questions of law and fact are involved in all these petitions, with the consent of the learned counsel for the parties, they were heard together and are being decided by a common order.
The facts as regards which there exist no dispute are as follows:-
St. Xavier's Inter College, Jaunpur (in short college or institution) was affiliated to the U.P. Madhyamik Shiksha Parishad (in short U.P. Board) up to Class-XII. The institution applied for affiliation with Central Board of Secondary Education, New Delhi (in short CBSE). By letter dated 23.10.2015, CBSE granted provisional affiliation to the College for a period of three years with effect from 01.04.2015 to 31.03.2018. The affiliation was sanctioned subject to fulfillment of certain conditions one of which was Condition No.4, which is extracted and reproduced herein below:-
“4. It is the case of switch over from the State Board; the school is required to withdraw its affiliation from State Board as dual affiliation is not permissible. Also State Board classes IX and XI will not be continued w.e.f. 01/04/2015. However, for the Class X and XII Examination to be held in the year 2015 & 2016, the school will sponsor its students for the State Board only.“ According to the College, an application dated 18.12.2015 was sent by the Principal of the College to the Director, U.P. Board, Allahabad informing him about switching over from U.P. Board to CBSE Board. The said application has been brought on record as Annexure No.3 to Writ-C No.31845 of 2017. The contents of the application are being extracted and reproduced herein below:-
“To The Director Madhyamik Shiksha Parishad Allahabad UP Sub- In concern with switching over from U.P. Board to C.B.S.E. Board. Respected Sir, This is for your kind information that St. Xavier's Inter College code no- (83/1211) had been running under the control of U.P. Board since 1996.
It was the need of the time and request of local people that we applied for C.B.S.E. board two years ago.
On 23-10-2015 we got the news that St.Xavier's Inter College is affiliated to C.B.S.E. (NEW DELHI).
Therefore, for the year 2015-16 we have filled the form of Class-IX and Class-XI in C.B.S.E. But class X & XII will appear in U.P. board examination for yer 2015-16.
We the Management, Staff, Students & parents are grateful to the U.P. Board for having good concern towards us for past years. We hope the same in future for class X and XII.”
The college thereafter sponsored 53 candidates/students to appear in Class-XII CBSE Board Examination-2017. Out of those 53 candidates, 36 candidates were sponsored to appear for U.P. Board Class-XII Examination also.
Out of those 36 candidates, who were sponsored for both U.P. Board Class-XII Examination and CBSE Class-XII Examination, 22 candidates appeared in both Board Examinations whereas 14 candidates appeared only for CBSE Board Examination. The CBSE Board declared result of 17 candidates who had been sponsored exclusively for CBSE Board as also the result of 14 candidates who though were sponsored for both Board Examinations but appeared only for CBSE Board Examination. The result of remaining 22 candidates who had appeared in both Board Examinations have not been declared. These petitions have been pressed for declaration of the result of those 22 candidates.
I have heard Sri Hriday Narayan Pandey, Sri S.R. Srivastava, Sri Mehul Khare and Sri Jai Vardhan Narayan for the petitioners in the three petitions; Sri Pramod Kumar Pandey for Union of India; Sri H.N. Pandey for CBSE; and learned Standing Counsel for the State- respondents including U.P. Board.
In the counter affidavit, the stand taken by the CBSE Board justifying non-declaration of the result of those 22 candidates is that as per condition No.4 imposed on the college for gaining provisional affiliation with the Board, the institution was required to withdraw its affiliation from the U.P. Board and it was not permissible for the institution to have dual affiliation and since the institution had sponsored its candidates for both Boards examination, the candidates who had appeared in both examinations, disqualified themselves from declaration of their CBSE examination result.
The learned counsel for the petitioners had placed the communication dated 01.09.2017 issued by the Section Officer of the Central Board of Secondary Education to the Principal of the College. The said communication is there on record at page 41 of the counter affidavit filed in Writ-C No.31845 of 2017.
In the communication issued by the CBSE Board to the Principal, reliance was placed on Rule 9(xvi) of Manual of Rules of Regulations; Rule 13.1 and Rule 6.5 of the Examination Bye-laws; Rule 13(8) and Rule 13(2)(iv) of the Affiliation Bye-laws of the Board, and on condition no.4 of affiliation letter, which has already been extracted above, to justify non-declaration of result.
Rule 9 (xvi) of Manual of Rules of Regulations have not been placed before the Court. The learned counsel for CBSE however fairly stated that it does not specifically deals with the issue at hand but confers power on the Chairman of CBSE to take appropriate decision in a given set of circumstances. In so far as Rule 13.1 of Examination Bye-laws is concerned, it has been placed before the Court but there appears no such provision which may lead to a conclusion that in the facts of the present case non-declaration of result was necessitated, as has been communicated vide letter dated 01.09.2017. Likewise, Rule 6.5 of the Examination Bye-laws does not lead to any such conclusion. Rule 13(8) of the Affiliation Bye-laws may be of some relevance and therefore the same is extracted and reproduced herein below:-
“13(8) Institution affiliated to the Board shall not in general send candidates for examination of any other Board/University. It shall prepare candidates for the Secondary and Senior Secondary examinations of the CBSE only. The general principle which may be followed at that affiliation for classes higher than Senior Secondary may be allowed with another University but for lower classes i.e. for Secondary classes this should not generally be allowed. The affiliation of vocational courses may be done as per the requirements of the institutions offering them.”
In so far as clause 13(8) of the Affiliation Bye-laws is concerned, that does not deal with automatic cancellation of the result of candidates who have appeared in both board examinations though it mandates the institution affiliated to the CBSE Board not to sponsor candidates for another Board or University examination. As it does not affect the right of candidates who had appeared in the examination, the same cannot be pressed into service for not declaring their result though it may be used for taking action against the institution, if permissible.
To the contrary, the learned counsel for the petitioners had placed reliance on Bye-law Nos.59 and 63 of the Examination Bye-laws which deal with declaration of results. Bye-law No.63 of the Examination Bye- laws provides that a candidates who has appeared in examination of the Board, shall be issued statement of marks for the Senior School Certificate Examination and Statement of Subject wise Performance/ Qualifying Certificate/Grade sheet cum Certificate of Performance for the Secondary School Examination. The said provision secures the right of a candidate for declaration of his result.
Another clause which has been relied upon by the Board in its communication dated 01.09.2017 is Rule 13(2)(iv) of the Affiliation Bye-laws which does not find place in the Manual of Bye-laws which has been placed before the Court. It has been suggested by the learned counsel for the CBSE Board that there may be some typographical mistake in numbering that bye-law. The learned counsel for the CBSE Board therefore sought to read it as Rule13 (12) (iv). Rule 13(12)(iv) of the Affiliation Bye-laws provides that “every affiliated school shall sponsor regularly its bona fide and eligible students in Boards Class-X and Class-XII examinations from the year mentioned while granting affiliation/ upgradation without break or inform with reasons thereof in writing well in time about the non-sponsoring of the candidates. Failure to do so will lead to suo moto withdrawal of the affiliation of the schools for Secondary and Senior Secondary Examinations as the case may be”.
The aforesaid Bye-law again places responsibility upon the institution and nowhere deals with a situation where a candidate had appeared in two Boards examination.
After going through the various provisions, noticed above, a specific and pointed query was put to the learned counsel for the CBSE to disclose any such provision which may provide that if a candidate has appeared in two Board examinations, then his candidature for CBSE would either stand automatically canceled or he would disqualify himself from getting his result declared.
Despite best efforts, the learned counsel for the CBSE could not point out any such provision.
Sri Mehul Khare, who has appeared on behalf of the petitioners in Writ C No.44572 of 2017, has placed before the Court a judgment of the Apex Court in Kuldeep Kumar Pathak Vs. State of U.P. and others, (2016) 3 SCC 521, in which the Apex Court had taken a view that in absence of any prohibition that a candidate cannot appear in two Board examinations, the result of the examinee cannot be withheld or canceled by a Board merely on the ground that he has appeared in another Board examination.
The aforesaid judgment applies on the facts of the present case because here also no provision could be shown justifying cancellation or non-declaration of result on ground of appearance in two Board examinations.
At this stage, it would be apposite to notice that to ensure that there had been no foul play by the petitioners/ students in giving two Board examinations in the same year, this Court had required the learned Standing Counsel representing the U.P. Board and counsel representing the CBSE to exchange the examination schedule of both the Boards so as to ascertain whether the examinations dates had clashed on any given date or not.
Pursuant to the aforesaid exercise, U.P. Board has filed a counter affidavit in which it has been disclosed that except for one paper, namely, Chemistry paper, the two Board examinations schedule did not clash with each other. Even in the Chemistry paper, the examination of the two Boards had been in different sessions i.e. different parts of the day. That is one was in the morning session and the other was in the afternoon session.
In view of the discussion made above, this Court is of the view that merely because the students had appeared in two Board examinations of the same year their result could neither have been canceled nor withheld in absence of any finding in respect of use of unfair means on their part.
Accordingly, the petitions are allowed. The Central Board of Secondary Education shall declare the results of the petitioners of CBSE - Class XII, Examination, 2017 within three weeks from the date of production of certified copy of this order.
Order Date :- 28.2.2018 AKShukla/-