Case BriefsCOVID 19High Courts

Orissa High Court: K.R. Mohapatra J., ordered in favour of the aggrieved student in light of prevailing extraordinary situation due to COVID-19.

The facts of the case are such that petitioner 2 son of petitioner 1 was admitted as student in Class 11 in the respondent school and was unfortunately taken into custody in February 2020 and released on bail in March 2020. While in custody annual exam was conducted and petitioner student couldn’t appear. In the last week of March nationwide lockdown was announced and the petitioner student could not submit his representation by 17-06-2020 in view of the extraordinary situation. Later his representation was rejected by the school due to delay. Odisha Human Rights Commission ordered the school to consider the case of the student but to no relief. Later this court vide order dated 17-07-2020 directed the school to provide the student with ID and password for online classes for Class XII (Commerce). Though the ID password was provided to the student but did not allow him to appear for the 1st-semester examination, him not having passed class XIth. Aggrieved by the same and as the half-yearly exams are approaching the present petition is filed for promotion of the petitioner student from Class-XI to Class-XII who is prosecuting his studies (Commerce Stream) in Delhi Public School, Kalinga, Adhalia, Cuttack i.e. the respondent school.

Counsel for the petitioners D.P Nanda, V. Narasingh, S. Das, S. Devi and B.B. Choudhury placed before the court press release and notification by CBSE dated 01-04-2020 and 13-05-2020 respectively

CBSE Press Release dated 01-04-2020:

 “2. For classes 9 and 11: It has come to our notice that though several schools affiliated to CBSE have completed their examination, evaluation and promotion process for students who were studying in grades 9 and 11 in the 2019-20 academic session, there are several schools that have not been able to do so. This includes among others, Kendriaya Vidyalayas, Navodaya Vidyalayas, State/UT Government schools, private schools, schools located in India and abroad, etc. All such schools are advised to promote students of grades 9 and 11 to the next grades on the basis of all the school-based assessments including project work, periodic tests, term exams. etc. conducted so far. For any child who is unable to clear this internal process, (in any number of subjects), the school may utilize this period for providing remedial interventions, and school may give the opportunity of appearing in school-based test/s, online or offline. The promotion of such children may be decided on the basis of such tests.”

CBSE Notification dated 13-05-2020:

The whole country is facing a challenging time due to Covid-19. This is an unprecedented situation. Children are confined at home. Their schools are closed. They are experiencing mental stress and anxiety. Parents are worried about salaries, health of family etc. In this difficult time, children who have not been able to clear school examinations will be even more upset. The queries of such students are constantly being received by CBSE Queries from parents are also being received continuously. At such a difficult time, all of us will have to make joint efforts to relieve students from stress and to help them to mitigate their anxiety. CBSE, in view of the requests of the parents and students, as a one-time measure in extraordinary situation has decided that all the failed students of 9th and 11th will be provided an opportunity to appear in a school-based test again. Opportunity will be extended to students irrespective of whether their examinations have been completed and the exam results have been released or their exams have not been completed. This facility is to be extended irrespective of number of subjects and attempts. Schools by providing remediation to such students can conduct online/offline/innovative tests and may decide promotion on the basis of this test. This test can be taken in all subjects in which students have failed. Before holding the test, the schools will give sufficient time to the students to prepare. Therefore, all schools affiliated to CBSE will provide an opportunity to all the failed students of classes 9th and 11th for all subjects where students have failed. It is once again reiterated that this exemption is to be extended to all the students even if they have been given the opportunity earlier to this notification also. This one-time opportunity is being extended only in current year in view of the unprecedented conditions of Covid-19. This benefit is a onetime measure and will not be extended in future.”

Sd-Dr. Sanyam Bhardwaj,

Controller of Examinations”

 Counsel representing respondent school A P Bose submitted that due to the callous attitude and negligence, the petitioner student has lost his opportunity to appear in the re-test Annual Examination of Class-XI. Counsel for CBSE, T.N. Pattnaik submitted that clarification was asked from the school regarding whether the student was given a chance to appear or not, no reply of which has been received by the CBSE. Hence CBSE prayed for no role in the said matter.

The Court in view of the documents placed and arguments made, observed that the educational institutions must take all possible measures to build up the career of the students. They should not stand as a stumbling block, particularly when the academic career of a student is at stake.

The Court held that the tenor and purport of the CBSE notification dated 13-05-2020 makes it clear that the notification was issued so that all the failed students of 9th and 11th are provided an opportunity to appear in a school-based test again irrespective of whether their examinations have been completed and the examination results have been released or their examinations have not been completed. In view of the above, the Court directed the school authorities to conduct a special examination for the petitioner student to appear in the class promotion and shall also be allowed to appear in the Test/Half Yearly Examination of Class-XII (Commerce Stream) which is scheduled to commence from 12.10.2020.

In view of the above, the petition stands disposed off.[Shamshad Begum v. UOI, 2020 SCC OnLine Ori 699, decided on 09-10-2020]


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Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of A. Muhamed Mustaque, J. dismissed a writ petition while giving a detailed analysis and clarity on dominant interest and subservient interest.

The present petition was filed by girl students belonging to the Muslim community with their plea to be allowed to wear the headscarf as well as full sleeve shirt which was inconsistent with the prescribed dress code by the school they were studying in. Since they were unable to follow the prescribed dress code, they filed the present petition.

In Court’s opinion, as one has the liberty to follow its own notions and convictions in regard to the dress code, in the same manner, a private entity also has the Fundamental Right to manage and administer its institution, therefore the Court had to balance the competing Fundamental Rights for resolving the present issue.

Analysis:
By taking reference of the decision from the case Amnah Bint Basheer v. CBSE, 2016 (2) KLT 601, the Court stated that it is the Fundamental Right of the petitioners to choose the dress of their own choice. Further, it was also noted that the right to establish, manage and administer an institution is equally a Fundamental Right.

Fundamental Rights are either in the nature of the absolute right or relative right. Court in the present case examined the prioritization of competing Fundamental Rights in a larger legal principle on which legal system function in the absence of any Constitutional guidance.

“Competing Rights, if not resolved through the legislation, it is a matter for judicial adjudication.”

Court had to balance rights to uphold the interest of the dominant rather than the subservient interest. In the present case, the management of the institution is the dominant interest, as if the management is not given free hand to administer and manage the institution that would denude their fundamental right.

“Where there is priority of interest, individual interest must yield to the larger interest. That is the essence of liberty.”

Thus, the High Court held that the petitioners cannot seek imposition of their individual right as against the larger right of the institution. It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt as it is purely their domain for any decision and Court cannot direct the institution to consider such a request. The writ petition was dismissed. [Fathima Thasneem v. State of Kerala, 2018 SCC OnLine Ker 5267, dated 04-12-2018]