- (1.) ANJANI Kumar, J.-The petitioner Shubham Bhushan (minor), through her father, approached this Court by means of present writ petition under Article 226 of the Constitution of India with the following prayers, (a) issue a writ, order or direction in the nature of mandamus commanding the respondents to permit the petitioner to pursue studies in class XII with respondent No. 2 and appear in I.S.C. examination, 2004, conducted by respondent No. 1 ; and (b) to issue a direction, directing the respondent No. 2 to re-check the copies of Physics and Mathematics papers and re-examine the petitioner in terms of regulations.
(2.) THE contention of learned counsel appearing on behalf of the petitioner is that the institution, in which the petitioner was studying, is a recognised institution which prepares the students for appearing in class XII examination conducted by respondent No. 1. THE petitioner after passing class X examination was admitted to class XI in the same institution. Unfortunately, according to the progress report, Annexure-2 to the writ petition, the petitioner failed in class XI. This would be clear from the tally of the marks and points, which demonstrate that since the petitioner has secured less than 39 per cent of marks in two subjects, therefore, she has been declared failed in class XI examination by the institution. From the progress report of the petitioner, it is clear that the petitioner has secured the following marks as has been shown in the chart and the remarks of the teacher, which read thus : Grade System : Marks Points 90-100 1 80-99 2 73-79 3 72-68 4 61-67 5 55-60 6 49-54 7 40-48 8 0-39 9 (Fail) Parents/guardians failing to receive this report should communicate with the principal. English, Hindi and S.U.P.W. are compulsory. Failure in two subjects will be a failure. Promotion according to the year's work. THE report card will not be issued if fees are in arrears. A pupil failing twice in the same class will have to be withdrawn from the school. Due to sickness, if any child fails to appear in the exams. Certificate from a Registered Medical Practitioner should be submitted within the period of exams. In no case will re-examination be taken. Subjects Ist Term 2nd Term 3rd Term Years Average Value Education Good Good Good Good English Language 45 50 46 51 49 51 51 English Literature 54 55 52 Hindi 45 52 56 51 Physics 11 33 30 25 Chemistry 43 41 41 42 Mathematics 13 07 36 19 S.U.P.W. and Community Service B A A Attendance 76/80 64/67 45/46 Personal, Social and Works Habits Integrity Good Good Good Self-esteem Good Good Good Leadership in service Good Good Good Openness to Growth and change Good Good Good REMARKS Ist Term : Shubham, you have to take your studies more sincerely with sincere efforts and regular work. You can definitely do it. Be more attentive in class. Parent's signature Teacher's signature 2nd Term : Shubham, you need to devote more time to maths and be more attentive and serious in class. Your promotion to class XII is going to be very difficult if you do not make up in Maths and Physics. Parent's signature Teacher's signature 3rd Term : Shubham, do not be disappointed. Failures are stepping stones to success. I am sure you will do well next session. Parent's signature Teacher's signature Promotion REFUSED Learned counsel appearing on behalf of the petitioner argued that according to the regulations framed by the respondent No. 1, the institution/college do not have right to say to student, like petitioner that she will not be promoted to class XII, as has been done in the case of the petitioner, because according to learned counsel for the petitioner, the Council for the Indian School Certificate Examination (in short "I.S.C.E."), the respondent No. 1 provides Scheme of Examination, which has been quoted in paragraph 14 of the writ petition, which reads thus : "13B. Scheme of Examination. 1. (a) The syllabuses in English (Compulsory) and in Indian Languages (Elective) have not been bifurcated. Questions will be set from the entire syllabus for the year-12 examination. (b) The Syllabuses in Elective Subjects (except Indian Langu-ages) are prescribed separately for class XI and class XII. The syllabus prescribed for class XI will be examined internally by the school and the syllabuses for class XII will be examined externally by the Council." Learned counsel for the petitioner further submitted that, as stated in paragraph 16 of the writ petition that the action and conduct of respondent No. 2, namely, the institution/college concerned in detaining the petitioner in class XI is against the regulations framed by respondent No. 1 and that this action is not only arbitrary, but also discriminatory. It was on the strength of the aforesaid arguments and regulations the petitioner claimed the reliefs, referred to above. The fact that the petitioner had not been able to secure minimum required percentage of marks and declared failed in class XI, is not disputed. It is also not alleged that the action of the respondent No. 2 has been biased or suffers from prejudice, but relying upon the regulations, particularly, last sentence of para 13 of the writ petition, which reads thus : "Candidates may be entered only by the school, they are attending and in this respect, the decision of the Head of the School is final."
(3.) LEARNED counsel appearing on behalf of the petitioner further submitted on the strength of the aforesaid 'Scheme of Examination' that students once admitted in class XI, there is no condition, much less pre-condition that they must pass class XI examination before they are allowed to appear in class XII examination to be conducted by respondent No. 1 in the year 2004. Relying upon the aforesaid 'Scheme of Examination', learned counsel for the petitioner submitted that the respondents are acting in wholly arbitrary manner and are damaging the future of the students. In reply to the aforesaid arguments advanced on behalf of the petitioner, learned counsel appearing for respondent No. 2 contested the writ petition firstly on the ground that institution being a private body, no writ can be issued by this Court in exercise of power under Article 226 of the Constitution of India, therefore, this writ petition is liable to be dismissed on this ground alone. Apart from the aforesaid preliminary objection, learned counsel for the contesting respondent further contended that according to the 'Scheme of Examination', as stated above, the Council respondent No. 1 is entrusted with the duty of examining the students in class XI internally, which pre-supposes that the candidate has to secure the minimum pass marks as prescribed by the respondent No. 2 before he/she is allowed to appear in class XII examination of Indian School Certificate Examination, 2004.;