"Counselling For College Admissions May Be Deferred to After Declaration of Results" Observes SC -Courtroom Exchange In CBSE/ICSE/Compartment/State Boards Exams Case

The bench of Justices A. M. Khanwilkar and Dinesh Maheshwari was hearing the matter.

Firstly, Mr. Singh prayed that the option as to whether a student wishes his result to be determined as per the scheme or he wishes to take the improvement exam ought to be exercised before declaration of the result itself.

"This option may not be given as either this or either that. That will result in a huge amount of uncertainty later. Let them decide in the beginning only- whether you want to take this option or you want to take the exam. Then the result can be declared. Then all the results will come at the one go and admissions to colleges will be dependent on that one result. All universities will have access to that one result at the same time. Give them the option at the outset only, rather than as a betterment chance later", advanced Mr. Singh.

"At present, a student doesn't know what marks he is going to secure", remarked Justice Khanwilkar.

"He knows the formula, he will understand where he stands", said Mr. Singh.

"Everyone who wishes to appear in the exam should have the option to appear. But if I am satisfied with the present marks, why should I make an attempt for the improvisation of marks? That the option (for taking the improvement exam or not) can be exercised at the outset, there is no difficulty. That point we can put to the AG", observed Justice Khanwilkar.

"If it is an exercise at the outset, then we have no difficulty. But if it is a method to improve the score , then there will be a huge amount of uncertainty. Students will be going from here to there...", said Mr. Singh.

Further, Mr. Singh indicated that while some schools are liberal in their marking of the internal exam, some are more stringent. "That is why you have the ICSE board and state boards and the CBSE board. If the marking is to be based on the basis of the school exam, then it is a throw of dice! People don't know where they will be. I know about my school but I don't know about the other schools", he advanced.

Next, Mr. Singh submitted that the criteria for the basis of evaluation by the ICSE and the CBSE are different; that while the ICSE takes English as compulsory in addition to the best of the 3 subject marks, the CBSE only takes 'Best of 3'; that while one is taking the average, the other is taking the best mark.

"This kind of uncertainty should not be there. It would be uniform for both", he pointed out.

Moving on, Mr. Singh flagged the concern that the marking for the current year is on the basis of the students who have studied in the school in the past three years. "Some students may not have studied in the same school for all these 3 years. Also, the school may have taken in new teachers, better teachers for a better score. Say, the subject of commerce has done badly and so the school brings a new teacher and the current teaching is better, or if the students' profile has changed in this year. The basis should not be somebody else's batch! The comparison of what I did for the past three years, I can understand. But don't take my results for the past three years and compare it with the earlier batches which have passed out', he prayed.

Finally, he pointed out that while as regards the CBSE, it is the schools themselves which are doing the computation, under the ICSE regime, it is the Board which has undertaken to do the needful- "There is another problem- in ICSE, they have asked for the data from each school as early as in April and May, whereas in CBSE, the school itself will do the computation"

"Apple cannot be compared with orange. They are two different boards", said Justice Khanwilkar.

"If a school itself is doing something, then there is scope for manipulation. In CBSE, every school has been told that this is how you have to work and how you have to decide the marking. In ICSE, schools have already frozen the data and the ICSE board will determine who gets what marks and they have taken the data. The difficulty is if you leave it to the schools, the current year result is not something that they were under an obligation to put on the website. Last year's result they had put on the website. So they can still manipulate this year's result", argued Mr. Singh.

Finally, he advanced that so far as scaling is concerned, the formula devised by the Boards is very complex- "I spoke to a very senior Maths teacher who said that he is unable to understand the formula. It is such a complex formula that even the teacher can't understand! How will a student understand then?"

"The AG can take the name of this teacher so that appropriate action can be taken. If a Maths teacher says I can't understand the formula, then who is to understand? Then you chose the wrong teacher!", commented Justice Khanwilkar in a lighter vein.

When Mr. Singh insisted that he is a very popular teacher, the judge remarked, "You should not go by individual perception. If a point in the scheme is arbitrary or irrational, we can understand, but we can't go by one-person perception"

Advocate Abhishek Choudhary sought to submit that the right to equality in admissions to colleges of private or compartment students is affected by clause 2 of the CBSE scheme which says that for Private / Patrachar / 2nd chance Compartment candidates etc., Examination will be conducted by the board as and when the conditions become conducive for conduct of such examinations.

"In absence of class 12th results, admissions to other colleges would be affected. CBSE, in its affidavit, has itself admitted the position that the CBSE would be able to conduct examination only in August. The competitive examinations are scheduled right from July. CLAT examination is to be held on 23rd of July. So therefore, the results will also be declared and the counselling will also start. Although these students can perform in the exam, they can't appear in counselling without the 12th result. Even if he has performed well in CLAT, he would not be able to take admission because he is not having the 12th result as per clause 29. When the environment will be conducive for the exam cannot be said !", it was submitted.

"That nobody can say today. But what is the difficulty? You can sit in the exam before the result and you can pursue the option for CLAT etc based on that result. Counselling can be deferred till the announcement of the results. Of course, we will hear the other side on this as we don't know the implication of the same", said Justice Khanwilkar.

"A large number of writ petitions challenging the decision of the government to cancel the examination are believed to be pending. The registry is not listing them. My client also said that let the exam take place. My contention is that this is not a marketplace, students can be forced to come with double masks, teachers can also have double masks! Even operations are being performed with double masks, COVID patients are being treated, there is no problem. Liberty should be given to take the exam", continued Mr. Singh.

"We can't understand you. What is double masking?", asked the bench.

"Double masking is when you have an N95 and then another mask over that. That is one hundred percent protection. You can also have hand sanitisers. I am reiterating my prayer for a physical exam. 0.17 is the positivity rate in Delhi now. The All-India average is also very drastically going down. It is a very, very important exam. Students are really very apprehensive that this will throw up so much of litigation and so much of problem and uncertainty! That is because I don't know which school is doing what and how the marking will be done!", pleaded Mr. Singh.

"For the students, there should be a ray of hope somewhere. There must be no uncertainty as to whether exams are to be conducted or not conducted. The decision has been taken at the highest level, it has also been taken on record by us. And you have the option to appear or not appear in the exam for improvisation. There is no prejudice to anyone. ", said Justice Khanwilkar.

The Judge asked AG K. K. Venugopal if it be appropriate to hear these other petitions challenging the decision to cancel the exam. "We are on propriety. Should we not hear those petitions also along with this?", asked the judge.

"With all due respect, no. There should be some finality", said the AG.

"Finality would be attained by dismissal of those writ petitions. So then no grievance will remain about not hearing anyone. Since these petitions are already filed in the registry, we can't ignore them. We have, in principle, agreed with your scheme and we have permitted you to go ahead. We are now only on those points which we want modified", said the judge.

The bench then adjourned the hearing to Tuesday to also bring on board the other writ petitions.