Delhi High Court Orders KVS Student Who Failed In Maths Be Promoted To Class-XII, Considers Marks Obtained In Physical Education

Justice Anup Jairam Bhambhani of the Delhi High Court recently allowed a student of Class-XI to be promoted based on marks obtained by him in Physical Education, an additional subject, instead of Mathematics (which he had failed to qualify).

The petitioner's grievance was that he had been denied promotion on the ground of Article 106 of the KVS Education Code (as amended in 2018), even though respondent No.1/school was bound by CBSE Examination Bye-Laws, 1995, which allow for marks in main subject to be substituted with marks of an additional subject, subject to conditions.

His case was that he satisfied those conditions and as such, the criteria to be promoted to Class-XII (of obtaining atleast 33% marks in each of the 5 subjects, in theory and practical, as also 33% overall) stood fulfilled.

To buttress his case, the petitioner relied on the Supreme Court's decision in Jigya Yadav v. Central Board of Secondary Education and Others, where it was held that the CBSE Bye-Laws are enforceable in a court of law.

The school, on the other hand, contended that so far as promotion from Class-XI to XII is concerned, CBSE has left it to individual schools to frame their own rules/criteria. It pressed Article 106 of the KVS Education Code, in terms whereof, a candidate must obtain 33% marks in all subjects, excluding the additional subject, to be promoted.

Rejecting KVS' contentions and resolving the conflict between CBSE Bye-Laws (Bye-Law 40.1) and KVS Education Code (Article 106), the court observed:

“…once KVS has sought and obtained affiliation to the CBSE inter-alia for Class-XI and Class-XII, KVS cannot impose on its students pass criteria for Class-XI which are in the teeth of specific pass criteria laid down by the CBSE vide Bye-Law 40.1.”

Referring to Jigya Yadav, Justice Bhambhani reiterated that “in the event of any conflict between a bye-law framed by the CBSE and a code issued by KVS, the CBSE bye-law would prevail”.

Since Bye-Law 40.1(iv)(b) and (vi) specifically permit the substitution sought, Article 106 must yield to Bye-Law 40.1(iv)(b) and (vi), the court said.

It was further observed that, “Bye-Law 40.1(iv)(b) expressly permits substitution of an additional subject in place of a main subject -provided that the additional subject is also offered as one of the elective subjects – and subject to the condition that even after such substitution, the candidate continues to retain either English or Hindi as one of the languages in the main subjects taken.”

As Physical Education was one of the elected subjects opted for by the petitioner as an 'additional subject', and English remained one of his main subjects, the court ruled in petitioner's favour.

Contrary to KVS' contention that Bye-Law 40.1(vi), which laid the Pass Criteria for Class-XI as obtaining of 33% marks (in each subject and in aggregate), stood deleted, the court ruled that it continues to be part of CBSE Examination Bye-Laws.

Significantly, before arriving at its conclusion, the court considered the decision of a co-ordinate Bench in Puneet Singh (Minor) through his Father Ramesh Singh v. Modern School & Anr., where certain observations were made w.r.t. Bye-Law 40.1(iv)(b).

In this regard, petitioner's counsel argued that said decision turned on interpretation of Bye-Law 26(i) (dealing with change in subject) and any observations w.r.t. Bye-Law 40.1(iv)(b) were obiter dictum.

Finding merit in the submission, the court remarked that there was no discussion or reasoning in Puneet Singh relating to Bye-Law 40.1.

Before parting with the order, it directed CBSE to make arrangement for KVS to submit the petitioner's name as one of the candidates for Class-XII CBSE Examination 2024.

Ms. Pooja Dhar and Ms. S. Ambica, Advocates appeared for petitioner

Mr. S. Rajappa and Mr. R. Gowrishankar, Advocates appeared for respondent Nos.1 and 2

Mr. Ashok Kumar and Ms. Chhavi Arora, Advocates appeared for respondent No.3/CBSE

Case Title: Aryan Kumar (Minor) through Father Ravinder Kumar v. Kendriya Vidyalaya & Ors.

Citation: 2023 LiveLaw (Del) 1087

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