- (1.) THE petitioner appeared in the Higher Secondary Examination conducted by the West Bengal Council of Higher Secondary Education in 2011. She could not pass the said examination as she failed to secure pass marks in one of her compulsory elective subject, viz., Physics. She also could not secure pass marks in her optional elective subject i.e. Mathematics. As such, the benefit of option of changing the compulsory elective subject as the compulsory optional subject as provided in Regulation 9 of the West Bengal Council of Higher Secondary Education Examination Regulation 2006 (hereinafter referred to as the said Regulation) could not be availed of by her. Since the petitioner failed to secure pass marks in one of her elective subject, she was eligible to appear as a Special candidate as per Regulation 8 (2) of the said Regulation. Accordingly, the petitioner applied before the Council seeking permission for allowing her to appear in the Higher Secondary Examination in 2012 as a Special candidate in both the 2 subjects viz., Physics (compulsory elective subject) and Mathematics (optional elective subject).
(2.) THE Council, however, did not permit the petitioner to appear in the optional elective subject i.e., Mathematics and tried to justify its stand by filing affidavit in the writ petition stating therein that since there is no whisper in Regulation 8 with regard to the optional subject, the Special candidate cannot be permitted to appear in the optional paper. It is further contended by the Council therein that Regulation 8 only permits the Special candidates to appear in the compulsory subject. Dr. Patra, learned advocate appearing for the Council supported the said stand of the Council by referring to Regulation 8 of the said Regulation. Let me now analyse the provision contained in Regulation 8 in my own way. For proper understanding of the provision contained in Regulation 8 and for ascertaining the entitlement of a Special candidate to appear in the optional subject, the provision contained in Regulation 8 should be read together with the provision contained in Regulation 9. For the sake of convenience of understanding, the provisions contained in Regulation 8 and Regulation 9 are set out hereunder : "Eligibility to appear in Higher Secondary Examination as special candidate. (1) A candidate, who fulfils the conditions specified in sub-regulation (2) shall be entitled to appear in the Higher 3 Secondary Examination as a special candidate till he passes in such Examination or in four subsequent Higher Secondary Examination, whichever is earlier : Provided that a special candidate may, if he desires to do so, enroll himself, and appear in the examination, as a continuing candidate by choosing the same subjects, which he had offered in the previous examination: Provided that a special candidate, who has offered a subject consisting of theoretical and practical paper should attend practical classes on the subject in the institution from where he was first sent up, for a period of not less than three months before appearing at the Higher Secondary Examination. (2) A special candidate must fulfil the following conditions to be eligible for appearing in the Higher Secondary Examination :- (a) he must have enrolled for any Higher Secondary Examination previous years, but appeared in maximum of two compulsory subjects or failed in maximum of two compulsory subjects; (b) he must have submitted the enrolment form to sit in the subsequent Higher Secondary Examination as special candidate and paid the necessary fees thereof to the Council through his institution on or before the last date as may be announced from time to time by the Council. (3) Notwithstanding anything contrary contained in any other provisions of these regulations, for finalising the result of a special candidate, the pass marks obtained by a special candidate in a subject, in the Higher Secondary Examination in which he is appearing, shall be taken into account along with the marks obtained by him in the subjects, in which he 4 has already passed in the previous Higher Secondary Examination. 9. Option of changing compulsory elective subject as compulsory optional subject etc. (1) If a candidate fails to obtain minimum pass marks in any compulsory subject excepting Environmental Education for the reasons of deficiency of less than five per centum of full marks, he shall, to make up the deficiency in the compulsory subject, be given credit by transfer of marks from the highest marks obtained by him in a compulsory subject excepting Environmental Education. (2) Notwithstanding anything contained in regulations 6, 7 and 8, a regular candidate or continuing candidate or special candidate who cannot be declared passed in the examination by reason of his - (a) not appearing in the examination of a compulsory elective subject, or (b) failure in obtaining the minimum pass marks in a compulsory elective subject, but has obtained the minimum pass marks in the optional elective subject, shall be declared passed by giving him the benefit of interchanging the compulsory elective subject as the optional elective subject and vice versa : Provided that if a candidate does not, for any reason, intend to take the benefit of interchanging the subjects, he shall, through his institution, intimate his intention as such, and surrender his mark-sheet for necessary correction therein, to the Council within thirty days from the date of publication of results. " On plain reading of the provision contained in Regulation 8, this Court is of the view that the said provision is an enabling provision which permits an unsuccessful candidate who failed to secure pass marks in maximum of two compulsory subjects, to appear in the next following examination in those compulsory subjects not exceeding two papers in which a candidate failed to secure pass marks in the previous examination. If Regulation 8 is read carefully, then it will appear therefrom that the said Regulation is silent about the eligibility of a Special candidate to appear in the optional subject in which the candidate has also failed to secure pass marks. The said provision does neither expressly authorise such Special candidate to appear in the optional elective subject nor it disqualifies such candidate from appearing in the optional elective subject.
(3.) SINCE no prohibition is expressedly provided prohibiting such a Special candidate from appearing in the optional elective subject, neither the Council nor the Court can supply and/or add something to the said provision which may prohibit such a candidate from appearing in the optional elective subject in the following examination. The provision contained in Regulation 9 provides for exercising an option of changing compulsory elective subject as a compulsory optional subject in case a candidate fails to obtain minimum pass marks in any compulsory subject excepting Environmental Education for the reasons of deficiency of less than 5% of full marks, he shall, to make up 6 the deficiency in the compulsory subject, be given credit by transfer of marks from the highest marks obtained by him in a compulsory subject excepting Environmental Education. The said provision thus makes it clear that if an unsuccessful candidate secures pass marks in the optional elective subject but fails to secure pass marks in the compulsory elective subject, then he may be permitted to change his optional paper as his compulsory paper and with such change, he may be declared as passed. Conjoint reading of these two provisions, gives an impression to this Court that these two provisions are complementary to each other. The beneficial legislation should always be interpreted in a pragmatic manner and not in a dogmatic manner to deny the benefits of such legislation to the class of person for whose benefit such legislation was enacted or regulations have been framed.;