Full Judgment Text
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CASE NO.:
Appeal (civil) 3961 of 2002
PETITIONER:
THE MAHARASHTRA STATE BOARD OF SECONDARY & HIGHER SECONDARY EDUCATION
Vs.
RESPONDENT:
AMIT & ANR.
DATE OF JUDGMENT: 09/07/2002
BENCH:
N. SANTOSH HEGDE, BISHESHWAR PRASAD SINGH.
JUDGMENT:
Bisheshwar Prasad Singh, J.
Special Leave granted.
The appellant, the Maharashtra State Board of
Secondary Education is a Board constituted under the
Maharashtra Secondary and Higher Secondary Boards Act,
1965. In this appeal, the appellant has impugned the
judgment and order of the High court of Judicature at
Bombay, (Aurangabad Bench) dated September 3, 2001 in
Writ Petition No.3131 of 2001, whereby the High Court
allowed the Writ Petition preferred by respondent No.1
herein and directed the Board to declare the petitioner as
having passed the examination. The High Court took the
view that under sub-clause 2(d) under Note 1 of Clause (3)(a)
of Regulation 52, the respondent No.1 was entitled to the
grant of 20 grace marks with the result that the marks
obtained by him in the subject Mathematics would be 39, he
having secured 19 marks in the examination. Consequently,
the respondent No.1 having obtained 39 marks in the subject
Mathematics with the addition of grace marks, would be
entitled to the further benefit under sub-clause (3) of Note 2
of Clause (3)(a) of Regulation 52, having secured more than
105 marks in the subjects Mathematics and Science taken
together and therefore entitled to the benefit of combined
passing in the subjects Mathematics and Science under the
said provision.
We may first notice the facts which are not in dispute.
Respondent No.1, who was a student of Saraswati Bhuvan
School took the Secondary School Certificate Examination
conducted by the Aurangabad Divisional Board in March,
2001. On June 2, 2001 the results were declared but
respondent No.1 was declared to have failed, since he had
obtained only 19 marks in the subject Mathematics as against
a minimum of 52 marks which a candidate is required to
obtain under the Regulation for passing in that subject.
Respondent No.1, then applied to the Board for the grant of
20 grace marks under sub-clause 2(d) under Note 1 of Clause
(3)(a) of Regulation 52 on the ground that he had participated
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in sports at the State level. It appears that the respondent
No.1 had participated in the "Kho Kho" competition at the
State level.
The application of respondent No.1 was rejected and
the decision was conveyed by the Divisional Secretary of the
Aurangabad Division Board to the Head of the school stating
that even with the addition of 20 grace marks, respondent
No.1 could not be declared to have passed, since he failed to
secure 52 marks in the subject Mathematics, even with the
addition of grace marks.
Aggrieved by the decision of the Board the respondent
No.1 preferred a Writ Petition before the High Court,
wherein he claimed benefit under sub-clause 2(d) under Note
1 of Clause (3)(a) of Regulation 52 as also the benefit under
sub-clause (3) of Note 2 of Clause (3)(a) of the said
Regulation. In substance, his case was that after adding 20
grace marks to the marks actually obtained by him in
Mathematic i.e. 19, he should be deemed to have obtained 39
marks in the subject Mathematics and therefore entitled to
the benefit of combined passing in the subjects Mathematics
and Science, since he had secured more than 105 marks in
the subjects Science and Mathematics taken together. The
High Court upheld the contention of respondent No.1 which
is challenged before us by the Board.
The Board has framed Regulations, and Regulation 52
lays down the standard for passing in a subject. A close
scrutiny of Regulation 52 discloses that it lays down
comprehensively the rules relating to the minimum marks to
be secured by a candidate for passing the examination, the
grace marks which may be granted to a candidate in given
circumstances, and the manner of calculation of such marks.
However, before adverting to the provisions of the aforesaid
Regulation, we consider it appropriate to notice the
principles which the Court has to keep in mind while dealing
with a case of this nature where grace marks are claimed
under the relevant Regulations. It cannot be disputed that the
academic standards are laid down by the appropriate
authorities which postulate the minimum marks that a
candidate has to secure before the candidate can be declared
to have passed the examination. The award of grace marks is
in the nature of a concession, and there can be no doubt that
it does result in diluting academic standards. The object
underlying the grant of grace marks is to remove the real
hardship to a candidate who has otherwise shown good
performance in the academic field but is losing one year of
his scholastic career for the deficiency of a mark or so in one
or two subjects, while on the basis of his overall performance
in other subjects, he deserves to be declared successful. The
appropriate authorities may also provide for grant of grace
marks to a candidate who has taken part in sports events etc.,
considering the fact that such candidates who have obtained a
level of proficiency in any particular game or event may have
devoted considerable time in pursuit of excellence in such
game or event. However, a rule for the award of grace marks
must be construed strictly so as to ensure that the minimum
standards are not allowed to be diluted beyond the limit
specifically laid down by the appropriate authority. It is only
in a case where the language of the statute is absolutely clear
that the claim for the award of grace marks can be sustained.
Normally the court shall be slow to extend the concession of
grace marks and grant a benefit where none is intended to be
given by the appropriate authority. (See Board of School
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Education, Haryana Vs. Arun Rathi & Ors. 1994 (2) SCC
526).
We shall now proceed to consider Regulation 52 on
which both parties have placed reliance. Regulation 52 in so
far as it is relevant reads as follows:-
"52. Standard for passing in a subject
To pass the Secondary School
Certificate Examination, a candidate
must secure at least ’C’ Grade in each
of the optional and School Certificate
subject offered by the candidate.
In the case of the Optional
Technical subjects (Branch 2) wherein
the examination is taken by the Board,
candidate must obtain minimum 35%
marks. In the case of three language
heads and Social Sciences which have
been allotted the maximum of 100
marks each, a candidate must obtain at
least 35 marks in each of them and in
the case of Mathematics and Science,
which have been allotted the
maximum of 150 marks each, a
candidate must obtain at least 52
marks in each.
(2) In a subject for which there are
more than one papers or practicals, the
marks will be added together for a
’pass’ in the subject.
(3)(a) Candidates appearing without
claiming exemption or exemptions
shall be granted automatic
condonation of marks if their
deficiency for the purpose of passing
in a subject or subjects is upto 2 or 3
marks as detailed below:
Subject Automatic
Condonation of
Marks admissible
upto
(i) First Language 2
(ii) Second Language 2
(iii) Third Language 2
(iv) Social Sciences 2
(v) Mathematics 3
(vi) Science 3
(vii) Mathematics and 6
Science (while
applying combined
passing provision)
(viii) Two subjects offered 2 in each
by Deaf and Dumb subject
candidates in lieu of
two languages
Note: (1) If more marks are required than
the limit of marks indicated above for the
purpose of passing in a subject or subjects
automatic condonation of marks shall not be
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granted in the subject or subjects.
(2)(a) Subject of the condition prescribed in
sub-clause (a) of clause (3), candidates may
get the benefit of automatic condonation of
marks in one or more compulsory subject or
subjects.
(b) The candidates shall also be granted for
the purpose of passing in the remaining
compulsory subjects of failure (wherein the
deficiency is more than the limit of 2 or 3
marks indicated in clause (3)(a) above upto
the maximum of 20 grace marks limited to
three subjects only subject to the condition
that in any one subject not more than ten
percent (of the maximum marks for that
subject) grace marks shall be granted.
(c) Notwithstanding anything contained in
sub-clause (b) (above), in the case of blind
or deaf and dumb or physically handicapped
or spastic candidates, the limit of maximum
10 per cent grace marks shall be extended
upto 20 grace marks.
(d) Notwithstanding anything, contained in
sub-clause (b) (above), a candidate who has
actually participated in any sports or games
held in India or abroad or State, National,
International level in the same academic
year, the limit of maximum 10 per cent grace
marks shall be extended upto 20 grace
marks, provided such request is made by the
candidate concerned through the respective
head of the secondary school, so as to reach
to the Divisional Secretary of the Divisional
Board concerned upto one month from the
date of the declaration of results. All such
applications shall invariably be submitted in
a prescribed form along with a certificate of
the District Sports Officers, to that effect, to
the Divisional Secretary of the Divisional
Board concerned".
Clauses (e) and (f) are in substantially the same terms
as Clause (d) and grant similar benefit of grace marks to
candidates who have actually participated in the Republic
Day Parade, President’s Rally etc.
Then follows Note 2 which reads as under:-
"Note 2: (1) Candidate may get the benefit
of both the provisions made under sub-
clauses (a) and (b) of Note 1, sub-clause (2)
of clause (3) but not in one and the same
subject.
(2) No automatic condonation of marks or
the grace marks shall be granted to a
candidate who does not pass the examination
even after applying the provisions made in
sub-clause (a) and (b) of Note 1, sub-clause
(2) or both these provisions of clause (3).
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(3) Notwithstanding anything contained in
clauses (1), (2) and (3) (a), a candidate
obtaining not less than 105 marks in the
subjects Mathematics and Science taken
together at one and the same Secondary
School Certificate examination, and
obtaining not less than 38 marks in the
subject or subjects of failure shall be entitled
to the benefit of combined passing in the
subjects Mathematics and Science.
(b) Candidates appearing with exemption
shall be granted automatic condonation of
the marks for the purpose of passing as
detailed below:
The automatic condonation of 13 marks shall
be granted to a candidate at the Secondary
School Certificate examination in proportion
to the number of subjects of failure but not
exceeding 3 marks in any one of the subject
as per the following schedule:-
No. of subjects Condonation marks
Admissible
1 3
2 5
3 8
4 10
5 13
Note 3: A candidate appearing with
exemption in either Mathematics or Science
shall not be entitled to the benefit of
combined passing in Science and
Mathematics.
Note 4: A candidate appearing with
exemption in other subject or subjects, and
appearing in Mathematics and Science at one
and the same examination shall be entitled to
the benefit of automatic condonation marks
to the extent of 5 marks for the purpose of
Secondary School Certificate while applying
rule of combined passing.
(4) No condonation marks or grace marks
shall be given in technical or other optional
subjects of failure".
A close scrutiny of the scheme of Regulation 52
discloses that under Clauses (1) and (2) of Regulation 52 the
minimum passing marks in each subject has been prescribed.
The Regulation in clear terms provides that in the subjects
Mathematics and Science (which have been allotted
maximum 150 marks each) a candidate must obtain at least
52 marks in each subject.
Clause 3(a) provides for grant of automatic
condonation of marks. The extent to which such automatic
condonation may be granted for the purpose of passing the
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subject is laid down therein. In the subjects Mathematics and
Science (while applying combined passing provision)
automatic condonation of six marks is admissible. The
automatic condonation of three marks in each subject
separately is admissible. So far as the case of the appellant is
concerned, there is no dispute that he secured only 19 marks
in Mathematics and 112 marks in Science. Under the
provision for grant of automatic condonation, he would be
entitled to three marks in the subject Mathematics which
would not enable him to secure the passing marks. Sub-
clause 2(b) of Clause (3)(a) gives an additional benefit to the
candidates for the purpose of passing in the remaining
compulsory subjects of failure, wherein the deficiency is
more than the limit of 2 or 3 marks as indicated in Clause 3
(a) upto the maximum of 20 grace marks, but subject to the
condition that it shall be limited to three subjects only, and
that in any one subject not more than 10% of the marks for
that subject shall be granted. Under sub clause (d) the
maximum 10% grace marks has been extended upto 20 grace
marks for a candidate who has actually participated in any
sports or games held in India or abroad at State, National or
International level in the same academic year. The
respondent No.1 claimed the benefit under Sub-clause (d),
and it is not in dispute that he is entitled to that benefit. Even
so the respondent No.1 would have secured only 39 marks
after grant of 20 grace marks in the subject Mathematics as
against 52 which is the prescribed minimum passing marks.
The case of the respondent No.1, however, is that once
20 grace marks are added to the marks obtained by him in the
subject Mathematics, it should be held that he has actually
secured 39 marks in that subject. He then relies on Note 2
sub clause (3) and submits that since the marks obtained by
him in Mathematics added to the marks obtained by him in
Science is more than 105, he is entitled to the benefit of
combined passing in the subjects Mathematics and Science.
Learned counsel for the appellant on the other hand
submitted that sub clause (3) of Note 2 which refers to "a
candidate obtaining not less than 105 marks" refers to the
marks actually obtained by the candidate on the basis of his
performance in the examination and not the marks deemed to
have been obtained by him after granting grace marks. She
submitted, and in our view rightly, that sub-clause (3) of
Note 2 is unambiguous, and permits of no confusion or
controversy. The Regulation clearly makes a distinction
between marks "granted’ and marks "obtained". Whenever
the Regulation refers to the marks obtained by a candidate, it
refers to the marks awarded to him on the basis of his
performance in the examination. But whenever it refers to
marks granted, it refers to the grace marks which are given to
the candidate as a matter of concession. She, therefore,
submitted that the benefit of sub clause (3) of Note 2 may be
given only to a candidate who has actually obtained in the
examination 105 marks in the subjects Mathematics and
Science taken together and not less than 38 marks in the
subject of failure. So far as the appellant is concerned, for
the purpose of sub clause (3) of Note 2, he should be
considered to have obtained marks less than 38 in the subject
of failure namely, Mathematics since he actually secured
only 19 marks. We find considerable force in the submission
urged on behalf of the appellant and it must be upheld.
Regulation 52 refers to the passing marks which a candidate
"must obtain" or "must secure". Clause (3)(a) which deals
with grant of automatic condonation uses the words "shall be
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granted automatic condonation of marks". Similarly under
Clause (b) of sub-clause (2) of Regulation 3(a) the words
used are "shall also be granted" Clauses ’c’ to ’f’ only extend
the grace marks upto 20. Under Note 2 sub clause (2) which
deals with automatic condonation of marks, reference is to
the marks "granted". The scheme of the Regulation is
therefore quite clear and it clearly makes a distinction
between marks "obtained" or "secured" and grace marks
"granted". In the light of this, if we consider sub-clause (3)
under Note 2 it would be apparent that the said Sub-clause
does not at all deal with grant of grace marks. Regulation 52
is a comprehensive provision and sub-clause (3) under Note
2 only deals with the grant of benefit of combined passing in
the subjects Mathematics and Science. It begins with a non-
obstante clause and lays down a special rule notwithstanding
anything contained in Clauses (1), (2) and (3)(a) of
Regulation 52. It clearly implies that even if a candidate
would have otherwise failed having regard to the provisions
of Clauses (1) and (2), despite grant of grace marks under
Clause (3)(a), yet under sub- clause (3) of Note 2 he is
entitled to the benefit of combined passing in the subjects
Mathematics and Science, provided he has obtained not less
than 105 marks in the aforesaid two subjects taken together,
while obtaining not less than 38 marks in the subject or
subjects of failure. We have already held that obtaining of
not less than 38 marks refers to the marks actually obtained
by a candidate in the examination on the basis of his
performance, and without addition of grace marks. So
construed sub-clause (3) of Note 2 does not confer any
benefit on a candidate like respondent No.1 who secured
only 19 marks in the subject Mathematics, and therefore,
does not fulfil the second condition. We have therefore no
hesitation in holding that sub clause (3) of Note 2 confers no
benefit on the respondent No.1 since he is not eligible
thereunder for the benefit of combined passing, having
secured less than 38 marks in the subject Mathematics. The
High Court was clearly in error in extending to the
respondent No.1, the benefit under the aforesaid provision.
We, therefore, hold that the High Court was in error in
allowing the writ petition of Respondent No.1.
Consequently, we allow the appeal and set aside the
impugned judgment and order of the High Court and dismiss
the Writ Petition filed by respondent No.1. We are informed
that the respondent later re-appeared in the examination and
has been declared to have passed the examination.
Before parting with the judgment we may observe that
the grant of grace marks being a matter of concession and
which tends to dilute academic standards, Regulations
dealing with grant of grace marks should not be generously
and liberally construed. We have noticed that several
concessions are given to candidates by way of grace marks.
A candidate may qualify under different Clauses of the
Regulation for the grant of grace marks. It is doubtful if a
candidate can claim grace marks under more than one Clause
even if he may be eligible for the concession under several
Clauses. It has been contended before us with considerable
force that a candidate may be granted grace marks under only
one of the Clauses under the relevant Regulation, and that in
no case shall he be entitled to the award of grace marks under
more than one Clause even if under the Regulation he may
be eligible for grant of grace marks under more than one
Clause. It is quite possible that a candidate may have taken
part in games at the State level and may have also
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participated in the Republic Day Parade and in the
President’s Rally, which are covered by sub-clause (d) (e)
and (f) of Clause (2) under Note 1. If the benefit under all
the three clauses is extended to a failing candidate, it would
really reduce the examination conducted by the Board to a
mockery.