Gagandeep Chauhan v. Gnct of Delhi and Ors

SANJIV KHANNA, J.

MARCH 21, 2011 VKR

54. *IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on : 21st March, 2011 + WRIT PETITION (CIVIL) NO. 1815/2011 GAGANDEEP CHAUHAN ..... Petitioner Through Mr. V.P. Chaudhary, Sr. Advocate with Mr. G. Tushar Rao & Mr. Atanu Mukherjee, Advocates. Versus GNCT OF DELHI AND ORS. ..... Respondents Through Mr. Bhupesh Narula, Advocate for respondent No. 1. Mr. Atul Kumar, Advocate for respondent No. 2. Mr. R.K. Vats, Advocate for respondent No. 3. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the Reporter or not ? Yes. 3. Whether the judgment should be reported in the Digest ? Yes. DIPAK MISRA, CJ. By this petition preferred under Article 226 of the Constitution of India, the petitioner has prayed for issue of a writ of mandamus directing the respondent to read down the bye-law 43 of Examination Bye-Laws- 1995 of the Central Board of Secondary Education (for short, "the Board") so that a regular student can be permitted to undertake an examination in mathematics subject along with other subjects of Class XII which is going to take place on 22nd March, 2011. 2. It is worth noting, the matter was listed before the learned single Judge on 18th March, 2011, whereby the learned single Judge had opined that in the earlier round of litigation, i.e., W.P. (C) No. 1203/2011 the Court had expressed the view that the petitioner is not entitled to get the relief in view of the language employed in the bye-laws. Thereafter, the learned single Judge, as is evincible from the order, thought it appropriate that the matter should be listed before a Division Bench as the prayer has been made, which comes within the ambit and sweep of challenge to the constitutional validity of the bye-law in question. 3. The basic facts, which are essential to be stated, are that the petitioner took admission in the school, viz., Manav Bharti India International School, Panchsheel Park, New Delhi, the third respondent herein, in Class XI, i.e., academic session 2009-10 in Commerce. He was promoted to Class XII and thereafter appeared in the entrance test which is in common parlance called pre-board examination to appear in the Board examination conducted by CBSE, as a regular student. He also appeared in mathematics and cleared the same. The petitioner was not a regular student of mathematics. As per norms, the petitioner"s form was sent indicating his regular subjects, which were received by the CBSE but the grievance of the petitioner remains as his form was not sent for the purpose of undertaking the examination in the subject mathematics. In view of the aforesaid factual matrix, the validity of the bye-law is called in question. 4. We have heard Mr. V.P. Chaudhary, learned senior counsel along with Mr. G. Tushar Rao, learned counsel for the petitioner and Mr. Atul Kumar, learned counsel for the respondent-CBSE. 5. In course of hearing, learned counsel for the petitioner has submitted that bye-law 43 of the bye-laws should be read down so that the petitioner can appear in the examination. The formulation of the bye-law, as proposed by the learned counsel for the petitioner, is as follows:- "43. Additional subject (s). A candidate who is appearing or has passed Secondary/Senior Secondary Certificate Examination of the Board may offer an additional subject as a private candidate provided that the additional subject is provided in the scheme of studies and in the case of a student who has passed that examination, the additional subject is offered within three (3) of passing the examination of the Board. Exemption from time limit may be granted by the Chairman in deserving cases. Facility to appear in additional subject will be available at the Annual Examination only." (Emphasis supplied indicating the change) 6. The bye-law in its original version reads as follows:- "43. Additional Subject (s).- A candidate who has passed the Secondary/S