(2015) 410 KLW 072
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.R. RAMACHANDRA MENON, J.
W.P.(C). No. 3420, 3527, 3672, 3894, 4348, 4374, 4513, 5460, 5634, 6180, 6199, 7090, 7876, 7922, 8333, 8380 of 2015
Dated this the 8th day of April, 2015
PETITIONER'S
NISHAD P. AND ORS.
BY ADV.DR.GEORGE ABRAHAM
RESPONDENT'S
1. STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATIONL DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695001.
2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695001.
3. DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM-676505. R1-R3 BY GOVT. PLEADER SRI.K.C.VINCENT.
JUDGMENT
Denial of the benefit of 'Grade/points' and 'grace marks' to the petitioners despite proving their eligibility and credentials in the State Level Competitions, merely for the reason that they, who got an entry to perform, either based on an order passed in the appeal (at the Revenue District Level) or on the basis of Court order, have not obtained more marks than the candidate selected from the concerned Revenue District, is under challenge in all these writ petitions.
2. The respondents seek to justify their stand with reference to
Clause 11 of Chapter 12 of the Kerala School Kalolsavom Manual
The said clause is under challenge in many of the writ petitions, contending that it is an unconscionable Clause and that, having given entry to participate in the State Level, based on the outcome of their appeal/Court order, the source cannot be a base for further classification; which in turn amounts to discrimination. Reliance is sought to be placed on a positive declaration made by a Single Bench of this Court in W.P. (C). No. 9262 of 2010 and another judgment in W.P.(C). No. 29820 of 2013 which stands affirmed by the Division Bench on dismissal of the Writ Appeal preferred by the State/Department vide W.A. No. 1843 of 2014. Pleadings and proceedings are referred to as given in W.P.(C). No. 3894 of 2015, which is taken as the lead case, except where it is separately mentioned.
3. There is no much dispute with regard to the factual aspects. The petitioners were participants in various items, either in the “Science-Mathematics-Social Science-Work experience and I.T. Fair or in the Kerala School Kalolsavom 2014- 2015. The competitions are held at different levels, mainly, Sub District Level, Revenue District Level and State Level. In the Sub District Level, the petitioners/their team came to be the winners, by virtue of which they were selected to participate in the Revenue District Level competitions. In the Revenue District Level competitions, the petitioners came to be pushed down and other candidates/teams were selected and sent to participate in the State Level competitions. In individual events/team events/maths fair, only the 1st prize winner/team with A-grade will be permitted to participate in the State Level competitions.
4. The petitioners herein approached the Appeal Committee constituted as per the 'Manual' and on getting an order permitting to participate, they participated in the State Level competitions. In some cases interference was declined in the appeal; by virtue of which they approached either the Lok Auyktha or the Kerala State Commission for Protection of Child Rights or even this Court or such other forum and got an order to enable them to participate in the State Level Competitions. According to the petitioners, they performed their level best and became eligible to be awarded the relevant grade/points as per the norms prescribed in the 'Manual'. But they were refused to be given the grade/points/certificate with reference to Clause 11 of 2.04 of Chapter 12 of Ext.P4, Kerala School Kalolsavom Manual, for the reason that they could not score at least one mark above the marks awarded to the candidate/team who was originally selected from Revenue District, to participate in the State Level competitions. Having given a chance to perform in the State level competitions, pursuant to the appeal/orders as aforesaid and having obtained the requisite extent of marks/grade/points, it is no more open for the respondents to deny the grade/points/certificates referring to the 'source of entry' which is stated as an unreasonable classification and hence the challenge.
5. A counter affidavit has been filed from the part of the respondent State/Department in W.P.(C) No. 3240 of 2015, which has been sought to be adopted in the other cases, as the contentions are more or less similar in nature. In the counter affidavit, it is stated that the School Kalolsavom Manual is quite categoric to the effect that, unless candidates who got opportunity to perform in the State Level competitions pursuant to the orders passed in appeal or by the Court/other forum, obtained at least one mark above the candidate who came from the same District, no grade/points/certificate will be given under any circumstances. It is pointed out that, the factual position dealt with by a Single Bench of this Court as per Ext.P6 judgment in W.P.(C) No. 29820/2013 affirmed by the Division Bench in W.A. No. 1843/2014 stands on a different footing and hence not applicable to the case in hand. With regard to Ext.P5 verdict passed by a learned Single Judge in W.P.(C). No. 9262 of 2010, it is pointed out that the said decision stands impliedly overruled, by virtue of the subsequent decision rendered by a Division Bench of this Court as per the verdict dated 4.7.2012 in W.A. NO. 1196 of 2012.
6. Heard both the sides in detail.
7. The learned counsel for the petitioners points out that the stand taken by the respondent/State under similar circumstance earlier, seeking to place reliance on Clause 11 of 2.04 of Chapter 12 of Ext.P4 Manual came to be deprecated by a Single Bench of this Court as per Ext.P5 verdict in W.P.(C). No. 9262 of 2010. The contentions of the respondents were repelled, holding that the Clause in the Manual permitting such discrimination cannot be accepted as valid, since the same is against the basic law and accordingly the writ petition was allowed, directing the respondents to issue certificates to the petitioners in accordance with their results in the State Level competition and they may be awarded 'grace marks', if they are actually entitled to the same. The observations made by the learned Single Judge in paragraph '4' of the verdict are as follows:
“4. When an appeal is allowed, it is on the basis that the original decision is wrong. Therefore, the petitioners participated in the state level competition because the appellate authority found that the decision of the lower authority is wrong and the petitioners were entitled to be selected for the state level competition. That being so, once the appeal is allowed and the appellant is allowed to participate in the State level competition, the appellant also becomes a regularly selected candidate. Thereafter that candidate cannot be discriminated on the ground that he/she participated on the basis of the decision in appeal. The fact that they did not perform better than the candidates who were regularly selected by the lower authority is no ground to deny the petitioners the benefit of the result of the state level competition. A clause in the Manual permitting such discrimination cannot be accepted as valid since the same is against the basic law.”
8. It is pointed out that, similar observation was made in Ext.P6 judgment in W.P.(C). No. 29820 of 2013 by another learned Single Judge as well; holding that, once the appeal is allowed, it cannot be said that the candidate continued to be in lesser grade than others. A similar Clause as clause 11 of Chapter 12 of Ext.P4 Manual, as it existed earlier vide Clause 'j' of Chapter 2 of the guidelines in the Manual of State School Science Experience Fair was extracted in the said verdict and it was observed that, the petitioner in the said case had obtained equal marks as of the candidate originally sponsored from the concerned Revenue District; that the petitioner had participated in the competition by an appeal order and not by any Court order as referred to in Clause 'j' of Chapter 2 of the Manual; and having obtained equal marks, there was no point in discriminating the petitioner or classifying him as belonging to another class. The said judgment was affirmed by the Division Bench judgment in W.A. No. 1843/2014 as mentioned already.
9. Before proceeding further, it will be advantageous to have a look into Ext.P4 Kerala School Kalolsavom Manual, which is a unified code, after amalgamating all the other existing manuals in each educational sectors (amalgamating High School, Higher Secondary and Vocational Higher Secondary Sectors). It is stated that such a step was pursued to put an end to the unhealthy competition and undesirable display of wealth in the field of School Kalolsavom and to save the time and energy of all concerned, giving a transparent course of proceedings; which has been finalized after considering the suggestions, advices and recommendations of experts in the relevant fields, educational/cultural/social and other areas. As per the unified code, grading is applicable only if more than 50% marks are scored. 70% or above will get A-grade with 5 points; 60% to 69% marks will get B-grade with 3 points and 50 to 59% marks are treated on C-grade with 1 point. A-grade is eligible for grace mark of 30, while B-grade enables to have grace marks of 24 and C-grade will fetch a total of 18 marks as grace marks. Only one person, who is the top scorer with A-grade in the concerned Revenue District, is permitted to participate in the State Level competition and in respect of Science Fair, top two teams are having entry as above.
10. Among other things, Ext.P4 Manual also provides how to identify the judges and how to conduct the festival by constituting various committees and how to deal with grievances/disputes by causing the same to be dealt with by the Appeal Committee etc. It is stated that, if there is any complaint with regard to the declaration of result, appeal can be preferred before the Appeal committee within 'one hour' of completion of the event, remitting the requisite fees in this regard. As per Clause 10.14 of Chapter 10 of Ext.P4, the Appeal Committee is to consider “only the technical and legal aspects” in connection with the event and that no “re-evaluation or re-performance” of the event is conducted under any circumstances. While Clause 10.18 of Chapter 10 stipulates that certificates are to be given to all those who have bagged A-grade in Revenue District Level competitions; it is not so stated when it comes to State Level Competitions. Chapter 12 of the Manual deals with Appeal Committee at different levels and as per clause 12.03, Appeal Committee of the Revenue District shall constitute of 'nine' members including the Chairman, who shall be the Deputy Director of Education, who may include experts/proven artists in different fields, apart from the power of the Chairman to induct such other experts as a member of the Committee, if so necessitated.
11. Here also it is clearly stipulated that the District Level Appeal Committee shall evaluate only the technical and legal aspects raised in the complaint preferred by the aggrieved party and pass a reasoned order thereon. Clause 11 of 2.04 of Chapter 12 stipulated that the participants of State Level Competitions who come through appeal had to score more than the marks secured by the regularly selected candidate, so as to have grace marks. (The said clause now stands amended, to deal with participants who got an entry to the State Level Competitions through orders passed by Courts as well, besides those who get in as per orders passed in appeals by the Appeal committee).
12. The scheme of evaluation of the appeals by the Appeal Committee, as discernible from Ext.P4 manual, is to the effect that performance of the appellant is not re-evaluated by the Appeal Committee and what is considered is only the technical or other legal aspects for which help of video clipping is also made use of. In other words, there is no merit evaluation as to the performance of the originally selected candidate or that of the appellant who gets cleared for participating in the State Level competitions. Performance evaluation is left to be done/adjudged by the experts of the concerned Judging Committee in the State Level competitions. What is being considered by the Appeal Committee is whether a chance should be given to the appellant to participate in the State Level Competition, because of the technical/legal reasons. Once such opportunity is given, it is for said appellant/participant to perform in a befitting manner, to prove that he/she was better to have been selected than the originally selected candidate, to have represented the Revenue District in the State level competitions and to be awarded A-grade/grace marks. It is with this intent, that Clause 11 of 2.04 of Chapter 12 stipulates, that grace marks will be given to such participants who come through appeal or Court orders, only if he/she scores better marks than the originally selected candidate.
13. This exactly was the question considered by a Division Bench of this Court while passing the judgment on 4.7.2012 in W.A. No. 1196 of 2012. The observations made by the Bench as discernible from paragraph '3' of the said judgment are relevant and hence extracted below:
“3. After hearing both sides and on going through the manual for the fair which is Ext.P7 we notice that eligibility for participation from a District is only for two teams who secure first and second position in the District level competition. Admittedly respondent could not get included in the two teams selected for participation in the District level competition wherein 4 other students secured higher position. Respondent's entitlement for participation at the State level therefore was not based on the ranking he got in selection but based an order issued by the Deputy Director of Education in an appeal filed by respondent against the selection made in the District level itself. In fact the Deputy Director of Education while directing the appellant to allow participation of the respondent in the State level did not hold that the selection of the other two teams was incorrect or that the respondent should substitute any one of them. In the absence of any such decision the permission granted to the respondent to participate in the State level should be taken as an interim arrangement made by the Deputy Director of Education. So much so, unless the respondent faired better than the members of the two teams selected from the District it cannot be said that the selection made at District level was not correct. So long as selected team members only are entitled to certificate based on performance in the State level competition, Respondent can, claim under clause (j) of Ext.P7 Manual only if he scores better grade above members of those teams. Under the Manual Respondent is not entitled to any certificate merely based on participation which was only an ad-hoc arrangement made by the appellate authority. In fact Clause (j) though deals with only cases of participation permitted under court orders it equally applies to orders issued by the appellate authority such as Deputy Director of Education as in this case who permitted participation at State level to respondent on an ad-hoc basis. So long as only two teams consisting of 4 students are entitled to participate at the State level, no more student could participate from a District over and above the permitted numbers and only such students are entitled to certificate depending on performance at the State level. The presumption in Clause (j) is that if any person permitted under interim orders issued by the appellate authority or court fairs better than selected candidates then the performance of such student will go against the selection at the District level and consequently he or she will be entitled to get certificate. In this case since respondent's performance is far below that of the candidates originally selected and who participated in the State level fair appellant rightly declined certificate to the respondent based on performance. Consequently we allow the writ appeal by vacating the judgment of the learned single Judge and uphold the stand taken by the appellant in declining certificate to the respondent.”
In View of the categoric declaration of law as above, this Court finds that the observation made by the learned Single Judge of this Court in Ext.P5 judgment dated 9.6.2010 in W.P.(C). No. 9262 of 2010 is no more good law, the same having impliedly been overruled by the Division Bench.
14. The observation of the learned Single Judge in Ext.P5 that when an appeal is allowed, it is on the basis that the original evaluation was wrong (as if the petitioners were entitled to be selected for the State Level Competition) appears to be not in conformity with the position as discussed by the Division Bench of this Court in W.A. No. 1196 of 2012, as extracted above. Since the factual and legal position stand asserted and clarified by the Division Bench, this Court does not find it necessary to refer the matters to a Division Bench, more so since Ext.P5 judgment of the learned Single Judge in W.P.(C). No. 9262 of 2010 was rendered prior to passing of judgment by the Division Bench as aforesaid. Ext.P5 judgment has lost significance or existence, by virtue of the subsequent verdict passed by the Division Bench explaining the position.
15. Coming to Ext.P6 judgment passed by another learned Single Judge of this Court, which has been affirmed by the Division Bench as per Ext.P7 judgment in W.A. No. 1843 of 2014, the factual position reveals that, the petitioner therein got only a 'third place' in the Revenue District level Kalolsavom and hence was not eligible to participate in the State Level competition. But based on the appellate order, he got a chance to perform in the State Level as well. Since he could not score more marks than regularly selected candidate, grade benefit was denied. The learned Single Judge of this Court observed that, in Clause 'J' of Chapter 2 of the relevant guidelines (in the Manual of State School Work Experience Fair), the adverse stipulation was with reference to a participant who comes by a “Court Order”; whereas the petitioner in the said case participated in the State Level competition based on 'appellate order' and not by any Court Order. It was observed that, the petitioner had scored equal marks as scored by the participant who was regularly selected from the same Revenue District and since both the persons secured equal marks, there was no justification to deny the benefit of 'grade' to the petitioner; which accordingly was ordered to be given. It was the said reasoning, that was affirmed by the Division Bench in W.A. No. 1843 of 2014. While considering the difference of classification between the candidates who participated under Court order or of the appeal committee, and those who participated without order of Court or Appeal Committee, the Bench observed that there cannot be any valid classification between the two classes of students having “same score”.
16. This is not the position involved in the present cases. In none of these cases, is there any instance of scoring equal marks as scored by the regularly selected candidate. All the petitioners herein scored only less marks than the originally selected candidates. Since only one candidate who was the top scorer with A-grade in the Revenue District was eligible to have entry in the State Level competition, the entry given based on orders of the Appeal Committee or orders passed by the Lok Auyktha, Kerala Commission for Protection of Child Rights or even this Court or such other forum could only be an adhoc arrangement, which could only be to give a chance to perform and prove the credentials, that he/she should have been selected in place of the other candidate who was actually selected and nothing more. If any candidate scores more marks than the originally selected candidate, admittedly that candidate will be given A-grade and grace marks. But on such event, the Manual does not say that the 'grade' and grace marks originally given to the other candidate will stand erased, which question however does not form the subject matter of consideration in these writ petitions.
17. The observation in paragraph '4' of Ext.P5 judgment as to the scope of the order of the Appeal Committee as if there were a merit adjudication, with reference to the performance of two rival candidates, was because of not bringing Clause 10.14 of Chapter 10 of Ext.P4 Manual to the notice of the Court; by virtue of which, no such comparative merit rating was possible to be done, but for examination of technical and legal aspects (granting a chance to perform in the State Level Competition, is not a certificate to hold that the petitioner ought to have been selected, by virtue of the better performance, in place of the originally selected candidate, as explained by the Division Bench in W.A. No. 1196 of 2012.
18. There is another contention for the petitioners that, if there are two conflicting decisions of co-ordinate Bench, the latter has to be given preference. As a matter of fact, this Court does not find any conflict between the judgment passed in W.A. No. 1196 of 2012 and Ext.P7 judgment in W.A. No. 1843 of 2014. As pointed out already, Ext.P7 judgment in W.A. No. 1843 of 2014 was with reference to the specific fact in the said case, as to the scoring of equal marks by the candidate who came to perform in the State level competition based on an order by the Appeal Committee as that of the regularly selected candidate, virtually suggesting that the said candidate was in no way lower in performance than the former. Contrary to this, the petitioners herein failed to prove their equivalence as of the regularly selected candidates but could perform only at a lesser level; which justifies the selection of the regularly selected candidates in the Revenue District level competition, by virtue of the mandate of Ext.P4 guidelines. No opportunity could have been obtained or given to the petitioners, based on such performance and they came to perform in the State level, only on the basis of an adhoc arrangement, which by itself cannot make them eligible to get the benefit of grade or grace marks. This Court does not find any merit in any of these writ petitions.
19. Before parting with the case, this Court cannot but observe the alarming increase in the number of cases being filed before this Court invoking the discretionary jurisdiction under Article 226 of the Constitution of India, for getting an entry to participate in the higher levels (Sub District level, Revenue District level or State level) competitions alleging improper merit rating or short comings of the stage or such other reasons, including the claim that the litigants' performance was better than that of the originally selected candidate. As a matter of fact, from January, 2015 till March, 2015 hundreds of cases were filed before this Court seeking for interference, and only in very few cases, where existence of a genuine ground (technical/legal) was noted, were the interim orders passed. It is seen that the candidates are choosing forum of their choice, to have an entry to participate in such higher level competitions by approaching the Lok Auyktha, the Kerala Commission for Protection of Child Rights and in some cases Civil Courts as well; apart from this Court. No merit rating is being done or can be done by this Court or such other fora as above, and there is no chance, means or expertise to evaluate the performance of the winning candidate or the contesting/rival candidate/petitioners. Normally, it may be thought of, that no prejudice may be caused to anybody, if a chance is given to the concerned petitioner to participate in the higher level competitions; thus granting interim orders. But the adverse consequence resulted are omitted to be taken note of, some of which could be explained as given below.
20. This Court has come across several circumstances when writ petitions have been filed by candidates/teams placed at much lower levels as at 4th, 5th , 6th etc., and seeking for a chance to perform at the higher level. It may also be a fact that the student/s or teams who are standing front in the queue, with a 2nd or 3rd place, may not be fortunate enough to approach this Court or such other forum, spending huge litigation expenses, to have an entry in the higher level competitions. Merely for the reason that persons/teams who are placed at far lower level happen to be fortunate to have obtained some or other order from this Court or such other fora to participate in the higher level competitions, and if this is to make them eligible to obtain 'grade' and grace marks, the better merited candidates who are sons or daughters of lesser gods, with no sufficient means to support their cause will be the victims of injustice, which cannot be perpetuated under any circumstance. A proper course and procedure is prescribed under the Manual, to settle the grievances and intervention shall only be an exemption, than as a matter of course or an order of the day.
21. Another important aspect to be considered is that, in connection with every school festival, hue and cry is always there, with regard to the belated start of events, heavily critisising the organisers and attracting the attention of mass media, projecting the plight of the students who are dressed up and waiting in the queue, for their turn for hours and finally, performing late in the night or in the odd hours of early morning on the next day. The plight of the judges who are made to wait there throughout is also seldom taken not of. The actual circumstance for such belated start, is also because of frequent and unwanted intervention through appeals /Court Orders, given as a matter of course. It may be noted that, when a State event is scheduled on a particular stage, contestants from different Revenue districts are to be permitted to perform. Taking note of the time specified for each individual/team and the minimum gap in between, schedule is fixed accordingly. Only after finishing one event on a particular stage, can the other event be started, though there may be several stages to accommodate different events. But when a new entrant comes, based on an appeal or Court order, the time schedule gets shattered. Because of several such appeal/Court orders, in place of the original limited number of entrants, it may go up to double or more and performance of all such participants will have to be evaluated by the very same judges before the stage is set for permitting others who are dressed up and waiting for some other event. This goes on, till late in the night or next morning, culpability/responsibility for which cannot be attributed solely to the organizers. The appellate authority as well as Courts/concerned forum have to be more restrictive in this regard and interference might be there, only in extremely deserving cases and not as a matter of course. Such interference has necessarily to be restricted not with reference to performance as made clear in Clause 10.14 of Chapter 10 of Ext.P4 Manual, but with reference to the technical/legal aspects and sustainability of the claim, as mentioned therein.
This Court does not find any merit in these writ petitions. Interference is declined and all the writ petitions are dismissed accordingly.
P.R. RAMACHANDRA MENON, JUDGE.
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