High Court · 2009

7. While Mr. K Bhattarchjee, learned counsel for the petitioner submits tha t the petitioner having cleared in Physics, Chemistry and Mathematics in the sam e sitting i.e. betterment examination, 2009, he is covered by the eligibility cr iteria as laid down in clause 5, Mr. MR Pathak, learned Standing Counsel, Educat ion Department submits that the petitioner having not paased the Higher Secondar y Examination clearing all the four papers i.e. English, Physics, Chemistry and Mathematics in the same sitting, he is not entitled to get admission to BE Cours e. In other words his submission is that since the petitioner appeared only in t hree subjects in the betterment examination, 2009 i.e. Physics, Chemistry and Ma thematics, it cannot be said to be a case of clearing English, Physic, Chemistry and Mathematics in the same sitting. On the other hand, Mr. K Bhattacharjee, le arned counsel for the petitioner submits that (cid:28)same sitting (cid:29) is only in respect of Physics, Chemistry and Mathematics as the emphasis is on those subjects provi ding that an SC candidate will have to secure 45% in aggregate in the three pape rs i.e. Physics, Chemistry and Mathematics.

8. I have considered the submissions made by the learned counsel for the pa rties as well as the material on records, including the notification No. EXB/11/ 2008/1 dated 25.08.2008 issued by the Assam Higher Secondary Education Council. The said notification pertains to the betterment of result scheme. As per the said examination a student, who has passed the HS Final Examination, 2008 under the Council, may appear again in the HS Final Examination, 2009 under the better ment of result examination of the Council in the same stream and course after ob taining necessary permission from the council. A student is entitled to appear i n a single subject or a maximum of four subjects only of his or her earlier comb ination of subjects offered in HS Final Examination, 2008 to better his or her r esults in the HS Final Examination, 2009.

9. The scheme further provides that the marks secured by a candidate in the HS Final Examination, 2009 will be replaced by the marks secured by the candida te(s) in the permissible subject(s) offered in his/her HS Final Examination, 200 9 under the betterment of result scheme to determine the result.

10. On perusal of the betterment of result scheme what is seen is that the m arks secured by the candidates in the betterment Examination, 2009 will replace the earlier marks secured in the subject of choice in which the candidate had ap peared in 2008 Examination. It is on that basis the petitioner was held to be e ligible to take CEE and accordingly, he appeared in the same. Now after having q ualified in the said CEE, he has been denied admission on the ground that he hav ing not cleared in the same sitting in the four subjects i.e. English, Physics, Chemistry and Mathematics in the betterment examination, 2009, is not entitled t o get admission being not eligible clause 5(b).

11. The requirement of eligibility for admission is to pass the Higher Secon dary Examination, in which the subjects English, Physics, Chemistry and Mathemat ics are to be passed individually securing at least 50% (45% in case of SC), mar ks in aggregate of the subjects i.e. Physics, Chemistry and Mathematics in the s ame sitting. In the instant case, the petitioner cleared all the three subjects i.e. Physics, Chemistry and Mathematics in the same sitting by appearing in the betterment examination, 2009, which will be an extreme interpretation, if he ha s denied admission on the ground that he did not clear the English paper along w ith the said three subjects. If the authority while framing the guidelines was of the opinion that all the four subjects will have to be cleared in the same si tting, the eligibility clause ought to have been structured with clarity.

12. It is in this context, Mr. Bhattacharjee, learned counsel for the petiti oner has placed reliance on the decision of the Apex Court reported in AIR 1990 SC 1075 (Sanatan Gauda Vs. Berhampur University & Ors.), wherein the Apex Court having noticed that the petitioner was allowed admission to law course, but was denied the examination on the ground of ineligibility, observed that the said pr inciple of the estoppel will operate against the University. It was also observ ed that if the authority of the University was of the particular intention and/o r interpretation, the Rules ought to have been framed in such a manner, which ma y not require great skill for understanding. In the instant case, the petitioner was permitted to appear in the CEE a 13. nd in fact Annexure-VI document depicting the marks secured by the petitioner, t he Chairman of the Selection Committee gave the following endorsement: - (cid:28)DTE The candidates has cleared ph, ch and maths at the same sittiang with 52.33%. T he DTE is requested to consider favourably. 8.07.2009 (cid:29) However, in the same document, another remark was given, which reads (cid:28)no 14. t cleared HS in same sitting (cid:29). It is on that basis the petitioner has been deni ed admission to BE Course without any reference to the betterment of result sche me and Clause 5 of the information voucher and application form.

15. In view of the above reasons, I am of the considered opinion that the pe titioner has been able to make out a case. Accordingly, the writ petition is al lowed with a direction to the respondents to give admission to the petitioner in the BE Course.

16. It is submitted, on behalf of the petitioner, that classes of BE Course have already been started and there is an urgency in the matter.Accordingly, the respondents are directed to take necessary steps in this regard as expeditiousl y as possible, but at any rate not later than one week from today. 17. o order as to costs. With the above direction, the writ petition is allowed. There shall be n