PETITIONER: BOARD OF SCHOOL EDUCATION Vs. RESPONDENT: ARUN RATHI DATE OF JUDGMENT09/02/1994 BENCH: AGRAWAL, S.C. (J) BENCH: 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: HEADNOTE: JUDGMENT:
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.
535