Baby Shivani Kapoor Vs. National Capital Territory of Delhi and Others - Court Judgment

Excerpt:
delhi school education rules, 1973 - rule 41--promotion of students from one class to another--writ petition seeking direction to recognised unaided school for promoting the petitioner from vith to viith class as she scored more than 33 per cent marks, the minimum passing percentage prescribed in the statutory regulations issued by the directorate of education--school fixing the passing percentage at 40 per cent uniformly for all students--petitioner scoring less than 40 per cent--no instance cited that other students differently treated--fixation of minimum passing percentage by the statutory regulations does not debar the school from prescribing higher passing percentage. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts -.....order1. the present petition is directed against the respondents to declare the petitioner as 'passed' student from vith class to viith class and for permission to join that class in the bal bharti public school, sector 14, rohini, respondent no. 4 herein.2. the petitioner is a student of the said school and appeared in class vi examinationheld for the session 1995-96. the result of the petitioner and other students was declared on27th march, 1996. the above said result in final grading was based on the performance of the petitioner in cycle tests, half-yearly and annual examinations respectively. in the annual examination her marks in each subject were as follows:s. no. subjectmaximum marksmarks obtained1.english100362.hindi100453.maths100294.science10031.55.s......

Judgment:
ORDER

1. The present petition is directed against the respondents to declare the petitioner as 'passed' student from VIth Class to VIIth class and for permission to join that class in the Bal Bharti Public School, Sector 14, Rohini, respondent No. 4 herein.

2. The petitioner is a student of the said school and appeared in Class VI examinationheld for the session 1995-96. The result of the petitioner and other students was declared on27th March, 1996. The above said result in final grading was based on the performance of the petitioner in Cycle Tests, Half-Yearly and Annual examinations respectively. In the Annual examination her marks in each subject were as follows:

S. No. SubjectMaximum MarksMarks Obtained1.English100362.Hindi100453.Maths100294.Science10031.55.S. Studies100246.Sanskrit5025.5

The assessment was then made on the basis of over all performance of the petitioner in three examinations and the marks were worked out as follows:

SubjectMaximum MarksMarks ObtainedEnglish10036Hindi10044.5Math10034.5Science10039Social Studies10033Sanskrit10049.5

The school did not promote the petitioner to class VII as she failed as per the criteria and the standard prescribed by the school by which a student has to secure 40 per cent in each subject/aggregate to be declared as 'passed'. The petitioner also secured less than 33 per cent marks and failed in three main subjects viz. Maths, Science and Social Studies and secured less than 40 per cent marks in the final examination. It is contended by the respondents that the criteria fixed by the school is very fair, reasonable and equitable and followed uniformly for all students of the school for all the classes. The procedure, practice and policy is being followed by the school and the parents of the students are well aware of the same The criteria of 40 per cent aggregate marks was, accordingly, fixed by the school in the best interest of the students.

3. The petitioner, on the other hand, has contended that the Director of Education, Delhi Administration circulated vide letter No. F.32/220/Schools/81 dated April 3, 1982 and subsequently amended on 17th September, 1983 and December 2, 1987 and by corrigendum issued on March 2, 1988 clearly specified that the students must be declared passed at the end of the session of a class if she/he has secured 33 per cent marks in each of the subjects offered by him or her. The relevant rule is 32 which reads as follows:

'Promotion Rules for Classes IV to IX & XI.

Passed : In order to be declared 'Passed' at the end of the session of a class, a student must secure at least 33% marks in each of the following subjects offered by him/her during the session and in case of subjects involving practical work, the student must secure at least 25% in the practical portion and 33% in the theory and in aggregate. In computing 33% of the marks, the benefit of a fraction will go to the credit of the student and such a student shall be declared 'Passed' and he/ she shall be promoted to the next higher class:--

(a) Class IV & V 1. Hindi2. Maths3. General Science4. Social studies.(b) Class VI to VII 1.Hind/Regional Language2. English3. Mathematics4. General Science5. Social Studies6. Sanskrit /Third Language7. Addl.Subject (s)Physical Education (for Internal, Assessment)'

4. The petitioner's father represented to the school and also made representation to the Chief Minister's Office to lodge his protest. Shri Ramesh Negi, Secretary to the Chief Minister recorded as follows:--

'RAMESH NEGI TEL. NO. 2933161

SECY. TO CM. FAX NO. 2940721

CHIEF MINISTER OFFICE

GOVT. OF NATIONAL CAPITAL

TERRITORY OF DELHI

OLD SECRETARIAT

DELHI -- 110054.

11-4-1996

Parents of Shivani Kapoor have brought to the notice of C.M. that Bal Bharti Public School, Sector-14, Rohini, Delhi has prescribed minimum pass marks as 40% in each subject which is at variance with the Delhi School Education Act and administrative instructions on the subject.

2. C. M. has accordingly desired that this may be got enquired into and a report sent within two days.

Encl: Achievement Report (Ramesh Negi)95-96 Secretary to C.M.(Director Edn.)'

The petitioner did not succeed in getting any relief from the respondent school and, thereforee, filed the present petition to impugn the action in not promoting her to VII class.

5. Notice to show cause was issued and the respondents were directed to file respective counter-affidavits. The school which is respondent No. 4 filed its counter-affidavit wherein it is reiterated that (a) the school is an unaided private school and is not covered by Article 12 of the Constitution of India; (b) the criteria fixed by the school is fair, reasonable and equitable and is being uniformly applied to all students of the school for all the classes and (c) the Government has only prescribed a minimum percentage of at least 33 per cent which will not debar the school to fix a higher percentage for declaring the student 'passed'. The petitioner cannot take any exception to the criteria of 40 per cent aggregate marks fixed by the school as the same was brought to the notice of all. The following paragraph with regard to 'Promotion Policy for classes VI, VII and VIII' is indicated on the back.portion of the Achievement Report which is filed as Annexure A to the petitioner:

'PROMOTION POLICY FOR CLASSES VI, VII AND VIII

(1) Attendance: Minimum 75% attendance during the academic session is necessary.

(2) The Minimum Pass Marks shall be 40 per cent in each subject.'

6. The learned counsel for the petitioner has strongly relied on the judgments as reported in Miss Payal Gupta v. Lt. Governor of Delhi, 1994 3 AD Del 1119 and Raj Soni v. Air Officer in charge Administration, : [1990]2SCR412 . The first judgment of Division Bench of this Court has dealt with the case of denial of readmission in the same school from where the student had passed and obtained 44.6% marks on the ground that minimum admission percentage was raised to 50 per cent by circular issued by the school. In that context the Court held that recognised school is covered by the Education Act and Rules and cannot have its own criteria of admission. The criteria, accordingly, was held arbtirary, unreasonable and irrational, Similarly, in the judgment as reported in Raj Soni : [1990]2SCR412 (supra) the Supreme Court held as follows (Para 10):--

'11. The recognised private schools in Delhi whether aided or otherwise are governed by the provisions of the Act and the Rules. The respondent-management is under a statutory obligation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the school. When an authority is required to act in a particular manner under a statute it has no option but to follow the statute. The authority cannot defy the statute on the pretext that it is neither a State nor an 'authority' under Article 12 of the Constitution of India.'

It is, accordingly, argued that the respondent school is bound by the statutory provisions and must declare the petitioner passed as she has obtained more than 33 per cent marks in aggregate. The respondent-school has resisted the averments made in the petition and took a categorical stand which has already been referred to above, that the parents of the students were made fully aware of the fact that no student shall be promoted to the next class until and unless she/he obtained more than 40 per cent marks in aggregate. This criteria, it is contended, is uniformly applied to all students and not a single exception has been made in this regard. The relevant stand with regard to the performance of the petitioner is clearly spelt out in paragraph 9 of the counter-affidavit, which reads as follows:

'The petitioner secured less than 33% marks in three subjects. The petitioner was thus not entitled to be promoted or passed to the next class. It may be relevant to point out that in Class V also the petitioner failed in 3 subjects and was promoted on an assurance from the parents of the petitioner to the next class. The petitioner and her parents instead of addressing to the studies and interest of the child have taken recourse to the present proceedings. It is submitted that in matters of education where the growth and career of a student is involved it becomes the duty of the parents to take effective steps to ensure that the child is given proper training and support to overcome the shortcomings and to at least reach the minimum level of pass percentage which in this competitive world has become totally meaningless and of no consequence. These days no student in Delhi is granted admission in any college/institution in case the marks secured by the student is less than 60%. The petitioner expects to be promoted even though she had secured less than 33% marks and failed in three main subjects viz. Maths, Science and Social Studies and secured less than 40% marks in English.'

7. The learned counsel for the respondents has also cited judgment of this Court as reported in Master Manish Sood v. Lt. Governor, : 58(1995)DLT328 to reiterate the proposition that in matters of this kind, no interference can be made by invoking the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. The petitioner has not been able to cite any instance that other students have been differently treated. The criteria as fixed by the school is based on cogent grounds and has been sufficiently explained in the counter-affidavit filed by the respondent-school. The petitioner has not been performing well in Vth class as well as in VI class. The application of criteria of 40 per cent aggregate marks has been uniformly applied in the case of students and this was within the knowledge of the parents who should have helped and encouraged the student who is of a tender age to put in more effort and not to insist on promotion to the next class when she is not fully prepared and equipped to lake an additional burden. Looking at the performance as indicated, it will not be in the interest of the student to promote her to the next class in the facts and circumstances of the present case. There is also force in the contention of the counsel for the respondent that a bare perusal of the statutory regulations as contained in the Instruction/ Rule 32 issued by the Directorate of Education regarding assessment, evaluation and promotion of student merely prescribes that a student must get at least 33 per cent marks in each of the subjects to be declared 'passed' but it does not act as a bar for the school to prescribe higher percentage. The learned counsel for the respondents-Government has not been able to give any other Explanationn to the provisions other than the one as canvassed on behalf of the school. The Government is definitely entitled to prescribe a percentage so that some uniformity is achieved in the matters of this kind for all recognised Schools but that by itself will not debar the schools to fix an appropriate higher percentage taking into account all relevant factors. The petitioner has also not pointed out any instance where any other student has been promoted to the higher class who is similarly placed.

8. For the aforesaid reasons, this petition fails and is dismissed with no order as to costs.

9. Petition dismissed.