- (1.) All these three matters are taken up together for hearing, as in the first mentioned writ petition, vires of the Regulations 2 (xxviii) and 9(xxv)(c) of the West Bengal Council of Higher Secondary Education (Examination) Regulations, 1999 (hereinafter referred to as the said Regulation), has been challenged, contending that the same are ultra vires Article 14 and Article 41 of the Constitution of India and. therefore, has prayed for striking down of the same. It is incidentally recorded that all the petitioners in the aforesaid matters have failed to qualify themselves of passing the respective test examinations, held by their respective institutions. As such, they were not sent up for appearing in the Higher Secondary Examination, by their respective schools, because they are prohibited from doing so by the Clause 9(xxv)(c) read with Clause 2(xxviii) of the said Regulation. 1 think, it would be apposite to set out the aforesaid two Clauses of the said Regulation. "Clause 2(xxviii) :- "Test" means such qualifying examination as is required to be held by an institution at the end of instruction of Class XII which a student is to pass to qualify in order to sit for the examination." "Clause 9(xxv) :- In order to be eligible to appear as a regular candidate in the examination a student is required to fulfill the following conditions, namely : (a) In order to be eligible to appear as a regular candidate in the examination, he/ she is required to prosecute regular study of the Higher Secondary Course of two years duration in a recognized Higher Secondary Institution with recorded class attendance not less than 70% of the total classes held in Class XI and XII taken together : Provided that the Council may condone the deficiency in attendance not exceeding 20% on consideration of illness or other sufficient reasons to the satisfaction of the Council subject to payment of such condonation fee as may be prescribed : Provided further that a student, whose attendance falls below 50%, shall not be eligible under any circumstances to appear at the examination in that year and shall have to continue in Class XII and attend classes till he/she obtains minimum percentage of attendance required for being sent up for the examination in the following year : (b) He/she must be eligible to be admitted in Class XI according to the West Bengal Council of Higher Secondary Education (Admission and Allied Matters) Regulation, 1987. (c) He/she must pass the annual examination at the end of Class XI and the test examination at the end of Class XII : (Emphasis supplied) (d) He/she must pay all fees to the Council payable by him/her : (e) He/she must acquire eligibility to get registration certificate and admit card."
(2.) The argument on behalf of the petitioners was opened by Mr. Sudipto Moitra learned Advocate on 17th March, 2004. Thereafter, at the time of giving reply Mr. Haradhan Bandopadhya, learned Advocate supplemented to the same. They argued, the aforesaid two Regulations purporting to create bar against taking final examination, by the regular candidates, who have failed in the test examination, are unconstitutional as being violative of Article 14 of the Constitution of India. They say, the bar created by the aforesaid regulations being Clauses 9 (xxv) (c) and having no intelligible differentia and, without having any guidelines whatsoever, is violative of Article 14 of the Constitution of India. In absence of guidelines, according to them, the School has been given unbridled and uncanalysed power to discriminate one student from other. They also argue that there is no specification in the said regulation, as to who could be declared to have passed the test examination, conducted at the end of instruction of Class XII. In absence of specified standard for declaring a regular candidate being passed, it is bound to result in arbitrary irrational action or decision being taken.
(3.) The word 'pass' is not qualified nor amplified by any word or expression meaning thereby what would be the minimum marks to be secured either in aggregate of all the subjects or individual subject. It is seen that different recognized schools have laid down different standards and norms, fixing eligibility for declaring a candidate being passed, for example, in one institution, it is reported, if a candidate fails in one or two subjects and scores pass marks in aggregate, he is cleared by the School authority to take final examination treating to have passed, whereas in other institution a candidate has to obtain pass marks in each and every subject, and in aggregate as well. Besides different minimum marks and/or pass marks for qualifying have been laid down, in different schools. They then urge, the 'bar of passing thus does not have any nexus with the object to be achieved by this regulation, if one looks at the clauses (iv) to (xiv) of Regulation 9 that too does not prescribe transparent methodology.;