West Bengal Council of Higher Secondary Education and Others Vs Subhabrata Dutta

Satyabrata Sinha, J.@mdashThis appeal is directed against a judgment and order dated 23-12-1998 passed by a learned single Judge of this Court whereby and whereunder the writ application filed by the petitioner was allowed.

2. The fact of the matter lies in a very narrow compass.

3. The petitioner is a student of Class-XII in science stream with physics, chemistry and mathematics as compulsory subjects and Biology as additional one. He passed the Secondary Examination in Second Division and in physical science paper he obtained 31 marks.

4. The petitioner was admitted in Class-XII. He was allowed to complete the courses of studies in the aforementioned subjects. However, while he was at the verge of completion of the entire course, he was asked to change the stream or subjects. The petitioner stated that the teacher incharge of the Kalighat High School wrote a letter on 20-8-1998 to the secretary to the Council for grant of special permission so that he may sit in the ensuing Higher Secondary Examination.

5. The petitioner contended that keeping in view the fact that he was not to be blamed as he was admitted by the school authorities, he should be permitted to appear at the examination.

6. The case of the appellant, on the other hand, is that in view of Regulation 14 of the West Bengal Council of Higher Secondary Education (Admission and Allied Matters) Regulations, 1987 the petitioner was not eligible to be admitted in science stream.

7. The learned trial Judge by reason of the impugned judgment relying on or on the basis of a Division Bench decision of this Court in University of Calcutta v. Soumit Chakraborty reported in 1995 (1) CHN 477 as also a decision. of the Supreme Court in Rajendra Prasad Mathur Ors. Vs. Karnataka University and Another, inter alia held that the rules and regulations framed by the Board are directory in nature and not mandatory and in that view of the matter treating the petitioner''s case as a special one, he was allowed to sit at the examination in the existing course in the science stream in which he was admitted.

8. Mr. Chatterjee, the learned counsel appearing on behalf of the appellant, inter alia, submitted mat the learned trial Judge went wrong in holding that Regulation 14 is directory in nature. The learned counsel before the learned trial Judge as also before this bench has placed strong reliance in Inspecting Assistant Commissioner, Bombay and Others Vs. Sharat Narayan Parab, , C.B.S.E. and Another Vs. P. Sunil Kumar and Others, , State of Maharashtra Vs. Vikas Sahebrao Roundale and others, , Guru Nanak Dev University Vs. Parminder Kr. Bansal and another, as also an unreported Division Bench decision of this Court in Ashoke Sana v. State of West Bengal (M.A.T. No. 4179 of 1998) disposed of on 25th February, 1999 (reported in 1999 (2) Cal LT 1) and submitted that the petitioner being not an eligible candidate, he cannot be permitted to sit at the examination.

9. Mr. Dilip Kumar Chatterjee, the learned counsel appearing on behalf of the respondent, on the other hand, submitted that in view of the decision of the Supreme Court in Rajendra Prasad Mathur Ors. Vs. Karnataka University and Another, as also a Division Bench decision of this Court in University of Calcutta v. Soumit Chakraborty reported in (1995) 1 CHN 477 the learned trial Judge was correct in holding that Regulation 14 is directory in nature.

10-14. Regulations 10, 12 and 14 of the said Regulations read thus :--

"Rule 10. Registration of students.-- All students admitted into Class XI of a recognised institution should immediately apply in the prescribed form for registration of their names with the Council on payment of the requisite registration fee through the Head of the same institution. Students migrating from other States should pay migration fee. Cases of registration are to be submitted in the prescribed form duly filled in and countersigned with the usual fee of Rs. 5.00 latest by the 28th February of the year in which a student is in Class XI. Under exceptional circumstances registration form shall be accepted till the 31st July of the year in which a student is in class XII provided a fine of Re. 1.00 is paid for each such form. The Council reserves the right to extend this date in exceptional circumstances on the specific declarations of the Head of the institutions. The Heads of the institutions are to submit registration forms in twoinstallments-One by the 28th February of the year in which the students are in Class XI and the other by the 31st July of the year in which the students are, in Class XII. (Fees shall be deposited in the manner provided at the bottom of registration form).

Rule 12. Change of Elective subjects.-- A student may be allowed to change any elective subject(s) offered by him/her at the time of admission in accordance with the subject combinations stated in Regulation 6(b) in Class XI only within a period of 3 months from the date of admission or within the 31st December of the year whichever is earlier if the Head of the Institution is satisfied with the reasons therefore.

The Council may, however, allow change of elective subject(s) to a student if his/her performance in the said subject(s) at the annual examination at the end of Class XI is reported by the Head of the Institution within a month to be very unsatisfactory :

Provided, however, the said pupil shall have to prosecute a regular course of studies again from Class XI: :

Provided further that an unsuccessful candidate of Higher Secondary Examination shall not be allowed re-admission into an institution but may be permitted to appear as external candidate with non-laboratory based subjects on fulfilment of other requisites prescribed for the purpose.

Rule 14. Eligibility of offering Chemistry, Physics, Biological Science and Mathematics for General Stream Courses -- (a) The students securing less than 45 per cent marks each in Physical Science and Mathematics at the Madhyamik Pariksha or its equivalent examination shall not be allowed to offer such compulsory elective combination of subjects as Physics, Chemistry and Mathematics.

(b) The students securing less than 45 per cent marks in the Life-Science at the Madhyamik Pariksha or its equivalent examination shall not be allowed to other Bio-Science, Botany Zoology and Physiology.

(c) The students securing less than 45 per cent marks in Mathematics at the Madhyamik Pariksha or its equivalent examination shall be allowed to offer Mathematics with other compulsory Elective combination than that stated in regulation 14(a) above :

Provided that the students securing 45 per cent marks or above each in Physical Science and Life Science but less than 45 per cent marks in Mathematics at the Madhyamik Pariksha or its equivalent examination may offer Biological Science, Physics and Chemistry as compulsory elective subjects and Mathematics as the 4th optional Elective subject provided that the combined aggregate score in Physical Science, Life Science and Mathematics is not less than 45 per cent. Besides a student securing 45 per cent, or above each in Physical Science and Mathematics but less than 45 per cent, marks in Life Science at the Madhyamik Pariksha or its equivalent examination may offer Physics, Chemistry and Mathematics as Compulsory Elective Subjects and Biological Sciences as 4th optional Elective subject provided that the combined aggregate score in Physical science, Life Science and Mathematics is not less than 45 per cent.

To put it more clearly a student cannot offer any of the above subjects as 3 compulsory Elective Subjects if the combined aggregate score of Physical Science, Life Science and Mathematics is less than 45 per cent."

15. Regulation 14 aforementioned, in our considered opinion, must be given its full effect. The heading of the said Regulation refers to the eligibility of certain subjects for general stream course. Such eligibility clause was evidently made with an afford object that the students securing marks less than prescribed therein would not be entitled to offer the subjects mentioned therein.

16. Sub-regulation (a) of (b) of Regulation 14 clearly states that any students securing lessor than 45 per cent marks each in Physical Science and Mathematics at the Madhyamik Pariksha or its equivalent examination shall not be allowed to offer such compulsory Elective combination of subjects as Physics, Chemistry and Mathematics. Similar restriction has been placed in clause (b). Thus, there cannot be any doubt whatsoever that the said provisions having been made in imperative terms cannot be held to be directory in nature.

17. Furthermore, while construing a legislation, the heading of the section may also be referred to if any doubt arises as regards the nature of such enactments. As noticed hereinbefore Regulation 14 is an eligibility clause and in that view of the matter, in our opinion, the said provision being a directory one, does not and cannot arise.

18. The purport and object of the said Regulations with reference to Regulations 10, 12 and 14 had been considered by a Division Bench of this Court in MAT No. 4179 of 1998 Ashoka Saha v. State of West Bengal) disposed of on 25-2-1999 (reported in 1999 (2) Cal LT 1 (Cal)), wherein this Court held :--

"Having considered the phraseology used in Regulation 14 of 1987 Regulations, we are of the opinion that as the same provides for eligibility of a candidate for offering the same subject as mentioned therein, the same is imperative in character. If the petitioner-appellant had been admitted by the school authorities wrongly, the rule of estoppel shall not apply as against the Second Respondent herein. The Second Respondent is a creature of the statute. It is bound to act within the four corners of the statute and only in the event it has the power to make any condonation and/or exemption adhering to the conditions laid down under the Regulations it has no other option but to pass an order in terms of the statute."

19. This Court while so holding referred to the decision of Shri Krishnan Vs. The Kurukshetra University, Kurukshetra, and distinguished the same. It was further observed :--

"On the other hand, there are a series of decisions where the Supreme Court has clearly laid down the law that a pupil who is not entitled to appear in the examination should not be allowed to do so in violation of the statutory regulation. Reference in this connection may be made to A.P. Christians Medical Educational Society Vs. Government of Andhra Pradesh and Another, , State of Tamil Nadu and Others Vs. St. Joseph Teachers Training Institute and Another, , State of Maharashtra Vs. Vikas Sahebrao Roundale and others, , Central Board of Secondary Education Vs. Nikhil Gulati and Another, , C.B.S.E. and Another Vs. P. Sunil Kumar and Others, . In a decision reported in 1997 (1) Cal LJ 143, a Division Bench of this Court was considering a matter relating to the right of a person to take admission and not with the question raised therein. In this jurisdiction also a Division Bench of this Court in Central Board of Secondary Education v. Adarsh Kumar Sedhwarayar reported in (1998) 2 CHN 61 upon considering the aforementioned decision as also the decision of the Apex Court in Guru Nanak Dev University Vs. Parminder Kr. Bansal and another, as also other decisions held:--

''It is beyond any dispute that the said Park Point School was not affiliated with the appellant. The writ petitioner might have taken admission under a misconception but it is beyond any cavil of doubt that unless the statute permits appearance of students as private candidates they cannot be permitted to do so.''

20. The Bench further noticed :--

Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another, , the law has been laid down in the following terms :

Thus apart from the directions as to appointment on compassionate grounds being against statutory provisions, such direction does not take note of this fact. Whatever it may be the Court should not have directed the appointment on compassionate grounds. The jurisdiction under mandamus cannot be exercised in that fashion.''

''In G. Kalyan Sundaram Vs. UCO Bank and Another, I had observed that in the fact of that case even sympathy has no role to play and in that connection noticed :

In Latham v. Richard Johnson & Nephew Ltd. reported in (1991) 13 All ER 117, Farwell, L. J. ''We must be very careful not to allow our sympathy sentiment is a dangerous will O'' the wisp to take as a guide in the search for legal principles. ''In the State of Tamil Nadu and Others Vs. St. Joseph Teachers Training Institute and Another, , the Apex Court observed that Court cannot grant relief on humanitarian ground contrary to law."

21. In Rajendra Prasad Mathur Ors. Vs. Karnataka University and Another, no law has been laid down therein within the meaning of Article 141 of the Constitution of India; whereas in the later decision, the Apex Court has clearly held that mandatory regulation must be complied with.

22. In University of Calcutta v. Soumit Chakraborty reported in (1995) 1 CHN 477, the Division Bench again did not lay down any law in inflexible terms but merely exercised its discretion as would appear from paragraph 9 of the said decision wherein it is stated :

"Perhaps, we would not have ourselves allowed the writ petitioner to appear in the examination, if our individual opinion is taken into consideration, but then this Hon''ble High Court having allowed the candidate to appear in the examination and the candidate having appeared in the examination, it would be manifestly unjust to withhold the result of the candidate concerned."

23. The learned Judges inter alia relied upon Shri Krishnan Vs. The Kurukshetra University, Kurukshetra, In Krishan''s case the Supreme Court was not concerned with violation of an eligibility clause. It was concerned with technical violation of a directory provision.

24. For the aforementioned reasons, we are of the opinion that the learned trial Judge committed an error in holding that Regulation 14 aforementioned is directory in nature. Furthermore, the learned trial Judge could not have allowed the respondent herein to appear at the examination as a special case. Such a practice has been deprecated by the Apex Court in no uncertain terms in C.B.S.E. and Another Vs. P. Sunil Kumar and Others, . This aspect of the matter has also been considered by a Division Bench of this Court in Ashoke Saha (1999 (2) Cal LT 1) (supra) as noticed hereinbefore.

25. Although keeping in view the aforementioned legal position we have no other option but to allow the appeal but in view the peculiar situation we would like to observe that the competent authority may consider the desirability to amend in the Regulation and/or provide for a power of relaxation in a given situation, as Regulation 14, in some cases would cause undue hardship to a section of students who may have to loose valuable years by reason thereof.

26. This appeal is, therefore, allowed but without any order as to costs.

S.N. Bhattacharjee, J.

27. I agree.