Firoz Khan Vs. the Secretary, Board of Secondary Education and ors. - Court Judgment

Excerpt:
- madhya pradesh nagar tatha gram nivesh adhiniyam (23 of 1973)section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishna kumar lahoti & rajendra menon, jj] preparation of town development scheme proviso prescribing time limit held, object of amendment is to remove hardship caused to citizens and to provide time limit to consider objections and suggestion and to provide a deeming clause so that the authority would act in quite promptitude. proviso unequivocal, categorical and unambiguous and does not permit any other kind of construction but a singular one. section 50 (4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso is not retrospective. scheme already finalised will not lapse and has to be completed within the time span provided under proviso. no vested right accrues in favour of authority on commencement of process of preparation of scheme, which cannot be impaired by introducing proviso. section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso uses the term shall be deemed to have lapsed. it does not convey that scheme gets automatically lapsed. - 3. in its reply, the board has taken a stand that the madhya pradesh state open school is a highly flexible pattern of examination for which neither regular course of study is required nor the students are required to take admission in any school and under the state open school system, several opportunities are available to the student and even if he may fail several times, he can appear under open school pattern and is given as many as nine chances to pass high school certificate examination and this is entirely different from the high school certificate examination conducted by the board. gujarat revenue tribunal air 1991 sc 1538, in which it has been held that where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment so as to exclude from it by implication what clearly falls within its express terms and that the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect.ordera.k. patnaik, c.j.1. this batch of writ petitions relates to eligibility of students who have passed the high school certificate examination (class x) conducted by the madhya pradesh state open school, bhopal in december, 2007 to appear in the higher secondary examination of the board of secondary education in march, 2009.2. w.p. no. 270/2009, w.p. no. 1521/2009, w.p. no. 1881/2009, w.p. no. 1945/2009, w.p. no. 2423/2009, w.p. no. 2438/2009, w.p. no. 2448/2009 and w.p. no. 2644/2009 are writ petitions filed by students who have passed the high school certificate examination conducted by the madhya pradesh state open school, bhopal in december, 2007 and w.p. no. 1705/2009 is a public interest litigation filed on behalf of the students. after the results of the high school certificate examination conducted by madhya pradesh state open school, bhopal were published on 14-4-2008, these students submitted applications to the madhya pradesh board of secondary education (for short 'the board') for taking the higher secondary school examination (class xii) in march, 2009 but their applications were rejected by the board. aggrieved, the petitioners have filed these writ petitions under article 226 of the constitution of india for appropriate reliefs.3. in its reply, the board has taken a stand that the madhya pradesh state open school is a highly flexible pattern of examination for which neither regular course of study is required nor the students are required to take admission in any school and under the state open school system, several opportunities are available to the student and even if he may fail several times, he can appear under open school pattern and is given as many as nine chances to pass high school certificate examination and this is entirely different from the high school certificate examination conducted by the board. the board has further taken a stand that regulation 97 of the board of secondary education (madhya pradesh) regulations, 1965 (for short 'the regulations') made under sub-section (4) of section 28 of the madhya pradesh madhyamik shiksha adhiniyam, 1965 provides that no student can be permitted to appear at the high school or higher secondary school examination as a private student in a year earlier than that in which he would appear if he had continued his studies at a recognised institution and a student who continued his studies at a recognised institution has to complete two years after the high school in class xi and class xii before he takes the higher secondary school examination conducted by the board. the case of the board is that since the students in the present batch of writ petitions have completed less than a year from the date of publication of the results of their high school examinations on 14-4-2008, they are not eligible to take the higher secondary school examination scheduled in march, 2009 under regulation 97 of the regulations.4. in the rejoinder filed on behalf of the petitioners, the petitioners have relied on the proviso to regulation 97 which states that at least four academic years shall have elapsed since the date of passing viii class examination and the year in which the candidate intends to appear in the higher secondary examination of the board as a private candidate. the case made out in the rejoinder is that since the students in the present batch of writ petitions have completed four academic years from the date of passing viii class examination, they are eligible to appear at the higher secondary school examination of the board as private candidates in march, 2009.5. at the hearing of the writ petitions, mr. vivek rusia, learned counsel on behalf of petitioner in w.p. no. 270/2009, submitted that the main provision in the regulation 97 will not apply to private candidates but only to regular students and instead the proviso to regulation 97 which states that at least four academic years shall have elapsed from the date of passing viii class examination and the year in which the candidate intends to appear in the higher secondary school examination of the board as a private student will apply and the students in the present batch of writ petitions have completed four academic years from the date of passing viii class examination by march, 2009 as stated in the rejoinders supported by affidavits and, therefore, they are eligible to take the higher secondary school examination conducted by the board held in march, 2009. mr. rusia cited the decision in shah bhojraj kuverji oil mills and ginning factory v. subhash chandra yograj sinha : air 1961 sc 1596, in which the supreme court has held that as a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment. he submitted that the proviso to regulation 97 is thus an exception to what is in the main provision in favour of those candidates who have completed four years from the date of passing viii class examination and makes such students eligible to take the higher secondary school examination of the board as a private candidate. he also relied upon the decision in kerala state housing board and ors. v. ramapriya hotels (p) ltd. and ors. : (1994) 5 scc 672, in which the supreme court has reiterated that the scope of the proviso is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the general rule.6. mr. pushpendra yadav, learned counsel appearing for the petitioner in w.p. no. 1881/2009, mr. anuj singh, learned counsel appearing for the petitioners in w.p. no. 1521, mr. surendra verma, learned counsel appearing for the petitioners in w.p. no. 2423/2009, mr. bhoop singh, learned counsel appearing for the petitioners in w.p. no. 2438/2009, mr. r.p. mishra, learned counsel appearing for the petitioner in w.p. no. 1705/2009 and mr. paritosh gupta, learned counsel appearing for the petitioners in w.p. no. 2448/2009 and w.p. no. 2644/2009 adopted the aforesaid arguments of mr. vivek rusia.7. mr. naman nagrath, learned counsel appearing for the board, on the other hand, submitted that regulation 97 of the regulations is clear that no student can be permitted to appear in the higher secondary school examination as a private candidate in a year earlier than that in which he would have appeared if he had continued his studies at a recognised institution. he submitted that a student who continued his studies at a recognised institution has to complete two years after the high school in classes xi and xiii before he can take the higher secondary school examination conducted by the board. he submitted that proviso to regulation 97 that at least four academic year shall have elapsed since the date of passing viii class examination and the year in which the candidate intends to appear in the higher secondary examination of the board as a private student is not an exception to the main provision in regulation 97 but is an additional requirement that a private candidate has to fulfil to be eligible to take the higher secondary examination of the board as a private student. he cited the decisions of the supreme court in a.n. sehgal v. raje ram sheoram : air 1991 sc 1406 and tribhovandas haribhai tamboli v. gujarat revenue tribunal : air 1991 sc 1538, in which it has been held that where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment so as to exclude from it by implication what clearly falls within its express terms and that the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect. he also cited maulavi hussein haji abraham umarji v. state of gujarat : air 2004 sc 3946 to contend that normally, a proviso does not travel beyond the provision to which it is a proviso. he argued that the proviso to regulation 97 cannot, therefore, nullify the effect of the main provision in regulation 97 that no student shall be permitted to appear at the higher secondary school examination as a private candidate in a year earlier than that in which he would have appeared if he had continued his studies at a recognised institution. he relied upon regional officer, cbse v. ku. sheena peethambaran and ors. 2003 air scw 4233, in which the supreme court has held that condoning the lapses or overlooking the legal requirements and considering only sympathy for the students disturbs the discipline of the system and ultimately affects academic standards. mr. nagrath submitted that as the students in the present batch of writ petitions admittedly have not completed two years after their high school certificate results, they could have completed classes xi and xii at a recognised institution and therefore are not eligible under regulation 97 to appear in the higher secondary examination of the board in march, 2009.8. chapter xvi of the regulations is titled 'private candidates' and regulations 92, 97 and 135 of this chapter, which are relevant for these cases, are quoted hereinbelow:92. private candidates shall be eligible to appear at the board's examination, on the conditions laid down in these regulations.97. no student shall be permitted to appear at the high school or higher secondary school examination as a private candidate in a year earlier than that in which he would have appeared, if he had continued his studies at a recognised institution:provided that at least four academic years shall have elapsed since the date of passing viii class examination and the year in which the candidate intends to appear at the higher secondary examination of this board as a private candidate.135. before entering upon the courses of study prescribed for high school examination, every candidate shall be required to have passed viii class examination held by an institution recognised for the high school, or higher secondary examination of the board, or an equivalent departmental examination conducted by the education department of the state or the corresponding examination of a similar institution situated outside madhya pradesh provided that such an institution is recognised by an examining body whose examination are recognised by the board.9. regulation 92 quoted above makes it crystal clear that the private candidates shall be eligible to appear at the board's examination on the conditions laid down in the regulations. hence unless the private candidates satisfy the conditions laid down in the regulations they will not be eligible to appear in the board examination. the petitioners of writ petition nos. 270, 1521, 1881, 1945, 2423, 2438, 2448 and 2644 of 2009 who applied as private candidates in higher secondary examination of the board in march, 2009 must, therefore, satisfy the conditions laid down in regulation 97 of the regulations to be eligible to appear in the examinations.10. regulation 97 provides that no student shall be permitted to appear at the high school or higher secondary school examination as a private candidate in a year earlier than that in which he would have appeared, 'if he had continued his studies at a recognised institution'. the phrase 'if he had continued his studies at a recognised institution' implies that the student was pursuing his studies at a recognised institution but at some stage had discontinued his studies at the recognised institution and for this reason wants to appear at the high school or higher secondary school examination as a private candidate. a student may have discontinued his studies in any class of high school or higher secondary school and if such a student wants to appear at the high school examination of the board as a private candidate, he can do so only in the year in which he would have completed class x, but if such a student wants to appear in the higher secondary school examination as a private candidate, he can do so if he has completed at least four academic years since the date of passing of class viii examination as stated in the proviso to regulation 97. date of passing of class viii examination is taken as the starting point of the period of four years to be completed for a candidate to be eligible to appear at the higher secondary education presumably because under regulation 135 of the regulations quoted above, every candidate entering upon courses of study prescribed for high school examination and thereafter higher secondary examination shall have to pass the class viii examinations. there is nothing in regulation 97 to indicate that the student who wants to take the higher secondary examination as a private candidate must complete two years equivalent to the period of study in class xi and class xii as contended by mr. naman nagrath. in case a student has discontinued his study at a recognised institution, he would have appeared in the higher secondary school examination if he had continued his study at a recognised institution for a period of four academic years from the date of passing viii class examination. this interpretation of the proviso does not destroy the main provision of regulation 97 but is consistent with the main provision in regulation 97. thus, those amongst the students in the present batch of writ petitions who have completed four academic years from the date of passing the class viii examination satisfy the conditions in regulation 97 of the regulations.11. we, therefore, dispose of this batch of writ petitions by a direction to the board to forthwith publish the results of those students who have taken the higher secondary examinations of the board in march, 2009 pursuant to interim orders of this court and who have completed four years between the date of passing the class viii examinations and the date of commencemnent of the higher secondary examinations in march, 2009. no costs.

Judgment:
ORDER

A.K. Patnaik, C.J.

1. This batch of writ petitions relates to eligibility of students who have passed the High School Certificate Examination (Class X) conducted by the Madhya Pradesh State Open School, Bhopal in December, 2007 to appear in the Higher Secondary Examination of the Board of Secondary Education in March, 2009.

2. W.P. No. 270/2009, W.P. No. 1521/2009, W.P. No. 1881/2009, W.P. No. 1945/2009, W.P. No. 2423/2009, W.P. No. 2438/2009, W.P. No. 2448/2009 and W.P. No. 2644/2009 are writ petitions filed by students who have passed the High School Certificate Examination conducted by the Madhya Pradesh State Open School, Bhopal in December, 2007 and W.P. No. 1705/2009 is a Public Interest Litigation filed on behalf of the students. After the results of the High School Certificate Examination conducted by Madhya Pradesh State Open School, Bhopal were published on 14-4-2008, these students submitted applications to the Madhya Pradesh Board of Secondary Education (for short 'the Board') for taking the Higher Secondary School Examination (Class XII) in March, 2009 but their applications were rejected by the Board. Aggrieved, the petitioners have filed these writ petitions under Article 226 of the Constitution of India for appropriate reliefs.

3. In its reply, the Board has taken a stand that the Madhya Pradesh State Open School is a highly flexible pattern of examination for which neither regular course of study is required nor the students are required to take admission in any school and under the State Open School system, several opportunities are available to the student and even if he may fail several times, he can appear under Open School pattern and is given as many as nine chances to pass High School Certificate Examination and this is entirely different from the High School Certificate Examination conducted by the Board. The Board has further taken a stand that Regulation 97 of the Board of Secondary Education (Madhya Pradesh) Regulations, 1965 (for short 'the Regulations') made under Sub-section (4) of Section 28 of the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965 provides that no student can be permitted to appear at the High School or Higher Secondary School Examination as a private student in a year earlier than that in which he would appear if he had continued his studies at a recognised institution and a student who continued his studies at a recognised institution has to complete two years after the High School in Class XI and Class XII before he takes the Higher Secondary School Examination conducted by the Board. The case of the Board is that since the students in the present batch of writ petitions have completed less than a year from the date of publication of the results of their High School Examinations on 14-4-2008, they are not eligible to take the Higher Secondary School Examination scheduled in March, 2009 under Regulation 97 of the Regulations.

4. In the rejoinder filed on behalf of the petitioners, the petitioners have relied on the proviso to Regulation 97 which states that at least four academic years shall have elapsed since the date of passing VIII Class Examination and the year in which the candidate intends to appear in the Higher Secondary Examination of the Board as a private candidate. The case made out in the rejoinder is that since the students in the present batch of writ petitions have completed four academic years from the date of passing VIII Class Examination, they are eligible to appear at the Higher Secondary School Examination of the Board as private candidates in March, 2009.

5. At the hearing of the writ petitions, Mr. Vivek Rusia, learned Counsel on behalf of petitioner in W.P. No. 270/2009, submitted that the main provision in the Regulation 97 will not apply to private candidates but only to regular students and instead the proviso to Regulation 97 which states that at least four academic years shall have elapsed from the date of passing VIII Class Examination and the year in which the candidate intends to appear in the Higher Secondary School Examination of the Board as a private student will apply and the students in the present batch of writ petitions have completed four academic years from the date of passing VIII Class Examination by March, 2009 as stated in the rejoinders supported by affidavits and, therefore, they are eligible to take the Higher Secondary School Examination conducted by the Board held in March, 2009. Mr. Rusia cited the decision in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha : AIR 1961 SC 1596, in which the Supreme Court has held that as a general rule, a Proviso is added to an enactment to qualify or create an exception to what is in the enactment. He submitted that the proviso to Regulation 97 is thus an exception to what is in the main provision in favour of those candidates who have completed four years from the date of passing VIII Class Examination and makes such students eligible to take the Higher Secondary School Examination of the Board as a private candidate. He also relied upon the decision in Kerala State Housing Board and Ors. v. Ramapriya Hotels (P) Ltd. and Ors. : (1994) 5 SCC 672, in which the Supreme Court has reiterated that the scope of the proviso is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the general rule.

6. Mr. Pushpendra Yadav, learned Counsel appearing for the petitioner in W.P. No. 1881/2009, Mr. Anuj Singh, learned Counsel appearing for the petitioners in W.P. No. 1521, Mr. Surendra Verma, learned Counsel appearing for the petitioners in W.P. No. 2423/2009, Mr. Bhoop Singh, learned Counsel appearing for the petitioners in W.P. No. 2438/2009, Mr. R.P. Mishra, learned Counsel appearing for the petitioner in W.P. No. 1705/2009 and Mr. Paritosh Gupta, learned Counsel appearing for the petitioners in W.P. No. 2448/2009 and W.P. No. 2644/2009 adopted the aforesaid arguments of Mr. Vivek Rusia.

7. Mr. Naman Nagrath, learned Counsel appearing for the Board, on the other hand, submitted that Regulation 97 of the Regulations is clear that no student can be permitted to appear in the Higher Secondary School Examination as a private candidate in a year earlier than that in which he would have appeared if he had continued his studies at a recognised institution. He submitted that a student who continued his studies at a recognised institution has to complete two years after the High School in Classes XI and XIII before he can take the Higher Secondary School Examination conducted by the Board. He submitted that proviso to Regulation 97 that at least four academic year shall have elapsed since the date of passing VIII Class Examination and the year in which the candidate intends to appear in the Higher Secondary Examination of the Board as a private student is not an exception to the main provision in Regulation 97 but is an additional requirement that a private candidate has to fulfil to be eligible to take the Higher Secondary Examination of the Board as a private student. He cited the decisions of the Supreme Court in A.N. Sehgal v. Raje Ram Sheoram : AIR 1991 SC 1406 and Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal : AIR 1991 SC 1538, in which it has been held that where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment so as to exclude from it by implication what clearly falls within its express terms and that the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect. He also cited Maulavi Hussein Haji Abraham Umarji v. State of Gujarat : AIR 2004 SC 3946 to contend that normally, a proviso does not travel beyond the provision to which it is a proviso. He argued that the proviso to Regulation 97 cannot, therefore, nullify the effect of the main provision in Regulation 97 that no student shall be permitted to appear at the Higher Secondary School Examination as a private candidate in a year earlier than that in which he would have appeared if he had continued his studies at a recognised institution. He relied upon Regional Officer, CBSE v. Ku. Sheena Peethambaran and Ors. 2003 AIR SCW 4233, in which the Supreme Court has held that condoning the lapses or overlooking the legal requirements and considering only sympathy for the students disturbs the discipline of the system and ultimately affects academic standards. Mr. Nagrath submitted that as the students in the present batch of writ petitions admittedly have not completed two years after their High School Certificate results, they could have completed Classes XI and XII at a recognised institution and therefore are not eligible under Regulation 97 to appear in the Higher Secondary Examination of the Board in March, 2009.

8. Chapter XVI of the Regulations is titled 'Private Candidates' and Regulations 92, 97 and 135 of this Chapter, which are relevant for these cases, are quoted hereinbelow:

92. Private candidates shall be eligible to appear at the Board's examination, on the conditions laid down in these Regulations.

97. No student shall be permitted to appear at the High School or Higher Secondary School Examination as a private candidate in a year earlier than that in which he would have appeared, if he had continued his studies at a recognised institution:

Provided that at least four academic years shall have elapsed since the date of passing VIII Class examination and the year in which the candidate intends to appear at the Higher Secondary Examination of this Board as a private candidate.135. Before entering upon the courses of study prescribed for High School Examination, every candidate shall be required to have passed VIII Class Examination held by an Institution recognised for the High School, or Higher Secondary Examination of the Board, or an equivalent departmental examination conducted by the Education Department of the State or the corresponding examination of a similar institution situated outside Madhya Pradesh provided that such an institution is recognised by an examining body whose examination are recognised by the Board.

9. Regulation 92 quoted above makes it crystal clear that the private candidates shall be eligible to appear at the Board's examination on the conditions laid down in the Regulations. Hence unless the private candidates satisfy the conditions laid down in the Regulations they will not be eligible to appear in the Board Examination. The petitioners of Writ Petition Nos. 270, 1521, 1881, 1945, 2423, 2438, 2448 and 2644 of 2009 who applied as private candidates in Higher Secondary Examination of the Board in March, 2009 must, therefore, satisfy the conditions laid down in Regulation 97 of the Regulations to be eligible to appear in the examinations.

10. Regulation 97 provides that no student shall be permitted to appear at the High School or Higher Secondary School Examination as a private candidate in a year earlier than that in which he would have appeared, 'if he had continued his studies at a recognised institution'. The phrase 'if he had continued his studies at a recognised institution' implies that the student was pursuing his studies at a recognised institution but at some stage had discontinued his studies at the recognised institution and for this reason wants to appear at the High School or Higher Secondary School Examination as a private candidate. A student may have discontinued his studies in any class of High School or Higher Secondary School and if such a student wants to appear at the High School Examination of the Board as a private candidate, he can do so only in the year in which he would have completed Class X, but if such a student wants to appear in the Higher Secondary School Examination as a private candidate, he can do so if he has completed at least four academic years since the date of passing of Class VIII Examination as stated in the proviso to Regulation 97. Date of passing of Class VIII Examination is taken as the starting point of the period of four years to be completed for a candidate to be eligible to appear at the Higher Secondary Education presumably because under Regulation 135 of the Regulations quoted above, every candidate entering upon courses of study prescribed for High School Examination and thereafter Higher Secondary Examination shall have to pass the Class VIII Examinations. There is nothing in Regulation 97 to indicate that the student who wants to take the Higher Secondary Examination as a private candidate must complete two years equivalent to the period of study in Class XI and Class XII as contended by Mr. Naman Nagrath. In case a student has discontinued his study at a recognised institution, he would have appeared in the Higher Secondary School Examination if he had continued his study at a recognised institution for a period of four academic years from the date of passing VIII Class Examination. This interpretation of the proviso does not destroy the main provision of Regulation 97 but is consistent with the main provision in Regulation 97. Thus, those amongst the students in the present batch of writ petitions who have completed four academic years from the date of passing the Class VIII examination satisfy the conditions in Regulation 97 of the Regulations.

11. We, therefore, dispose of this batch of writ petitions by a direction to the Board to forthwith publish the results of those students who have taken the Higher Secondary Examinations of the Board in March, 2009 pursuant to interim orders of this Court and who have completed four years between the date of passing the Class VIII Examinations and the date of commencemnent of the Higher Secondary Examinations in March, 2009. No costs.