"Covid Not Applicable To Private Students?"-Supreme Court Hearing- Courtroom Exchange In CBSE/ICSE/Compartment/Private Students

Supreme Court bench headed by Justice Khanwilkar on Teusday  heard different petitions relating to CBSE/ICSE/Compartment/Private Class XII Examinations. 

Advocate Abhishek Chaudhary, for 1152 candidates seeking cancellation of private/compartment exams, sought to submit that the right to equality in admissions to colleges of private or compartment students is affected by clause 29 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. The advocate advanced that the CBSE has indicated a probable window of 15th August to 15th September during which their examination also can be conducted depending upon conducive conditions. "Yesterday only, IIT Kanpur has come up with a study which says that the third wave might peak in September, AIIMS chief has given a statement two days back that there is a mutated version of a strain of the virus which would be responsible for the third wave which is likely in six weeks from today. We don't have bio-bubbles, we don't have other protection, students are not vaccinated. There can be no classification between regular students and private students so far as the application of the scheme is concerned; the classification has to be reasonable!", he argued

"We are talking about the balance of interest. It will only be served if the result is declared for all the students in a time-bound manner at one particular date. If there are two separate dates, then there will be problems as there are several universities in India and abroad who take admission only on the basis of merit, which is class 12th exam result", he continued.

"Remember you are representing the class of students who have taken compartment", said Justice Khanwilkar.

"But under the private category, those students are also placed who were not belonging to compartment class, but who could not appear in the exam because of their medical condition", replied the advocate.

The AG advanced that the exam will be held whenever COVID situation so permits and that all of these candidates are entitled to appear in the exam as private candidates.

"The number of students who are going to appear for improvisation is less and the number of private/compartment candidates put together is still less. Then CBSE or ICSE has no reason to delay conducting the examination, they can proceed with the conducting of the examination? You may declare results on 31st July and you may give them the option to confirm online within one week whether they want to appear in the exam. Those students who wish to appear for improvisation, that number will be known for you. You can immediately conduct the exam? And then for these compartment students, in the first week or second week of August you can conduct their exam if the number is less?", the bench asked of the AG.

"Till 31st July, CBSE is tied up with 14.5 lakh students...", responded the AG.

"Does it mean compartment students will not get admission this year? They will have to wait for one more year?", asked the bench.

"They will get it because September is the time of admission and it is from 15th of August that we are planning to conduct the examination", replied the AG.

"Is it possible to offer them a solution as regards clause 29?", asked the bench.

"I am told that the compartment students were given the opportunity last year where they failed and now they are asking for a third time liberty. But the exam has to be between 15th of August and 15th of September, depending upon the situation being conducive", told the AG.

When the bench inquired from Mr. Chaudhary if it is true that it is the same students who had appeared last year and failed again, the advocate replied that clause 29 speaks of three categories of students- Private students, second compartment students and Patrachar students (who were unable to take class 11 exams and have now been allowed to directly sit for class 12 exams)

"Assurance is given that the exam will be conducted before 15th of August, so what is the difficulty?", asked the bench.

"The central government has called off the examination of all the students. The notification issued by CBSE on 14th of April says that examination for all students of class 10th and 12th is called off. On 1st of June, they came up with another notification that all the examinations postponed earlier now stand cancelled. The PM said that all exams for class 12 students are cancelled. Examinations were cancelled because of Covid. Is this Covid situation not available for these private students?", argued the advocate.

"We are not entertaining this argument", said the bench.

"What will happen if a further date is appointed for the examination, which may or may not happen depending upon the situation? There are a large number of public universities and private institutes which take admission directly based on merit list, relying on class 12th marks. So seats in this college will be occupied by regular students from state boards, ICSE and CBSE because results will be announced. We might also make a reference to these schemes for assessment for private students? States of Maharashtra, Jammu and Kashmir and Orissa have given grace marks to these private students. Article 21 must be for all. Give them grace marks, that can save lives of students", pleaded Mr. Chaudhary.

"These are compartment students and you are talking of grace marks? The AG says exams will be conducted, they will start on 15th August. Since there are different subjects, they will obviously spill over till 15th September", observed the bench.

When the advocate insisted that the right to admission of these students must also be secured, Justice Khanwilkar noted, "Admission will be on merit. If you secure the required result, you can seek admission based on those results. UGC is going to instruct all the colleges not to begin the process till the result is declared. So seats will not be filled by Regular students"

Finally, the bench proceeded to record in its order that for private/patrachar and second compartment candidates, the present scheme provides that an examination will be duly conducted and the students can appear in that exam as private candidates; that the AG has said that the examination will be conducted no later than between 15th August and 15th September.

"The results will be declared at the earliest so that the students will be in a position to pursue their future education if they so desire. Clause 29 of the scheme provides for this eventuality", recorded the bench.

The Supreme Court also  recorded the statement by AG K. K. Venugopal for the Union of India that UGC will be issuing necessary instructions to ensure that admission processes to colleges and universities for further studies should commence after declaration of results by the CBSE, ICSE and the state boards, excluding the result for the improvement exam.

 This was in context of a prayer by Senior Advocate Vikas Singh, for the UP Parents Association, that the option as to whether a student wishes to take the improvement exam or whether he wants his result to be ascertained as per the internal assessment scheme devised by the boards should be given to him at the threshold so that the improvement exam can also be conducted for those who wish to take it simultaneously and then the results of all students, whether they opt to take the written exam or go by the internal assessment, can be declared on the same date. It was his concern that if this option is exercised after the declaration of results based on the internal assessment, it would exclude the students who choose to take the improvement exam from the opportunity of college admissions in the current year.


"If you have a scheme that at the outset itself we will give the option to the students and the students will give the confirmation online, within two days or three days, then you will know the number of students who want to appear in the exam and for the rest of them, the result can be declared. Then, for these students, between August and September, the exam can be held. Before 31st July, results of all the students will be declared based on the internal assessment, not based on the off-line examination. The latter will be subject to holding the examination. Right now, you are not in a position to indicate the exact date. First tell us if this option is possible or not possible?", Justice Khanwilkar put to the AG.

 Indicating how the suggestion may not be in the best interest of the students, the AG advanced, "The student is now having two options – his vast performance will be assessed and he will get a certificate of marks. If he wants to improve on that, he will be able to take a written examination between September and October. But if his marks are excellent, he won't take the risk of taking the written exam because then what he gets in the written exam is final, even if it is less than the marks he got in the internal assessment. The exam he takes subsequently is final. Once the exam is written, there will be no internal assessment. Suppose, he takes this option at the threshold, saying that he does not want the internal assessment, then he is bound by what he has said! Then in no circumstances would you have the right to have an internal assessment. If he says in the beginning itself that I will take the exam, then this is the risk he takes!"

 "This suggestion is not possible. One student says I don't want an internal assessment but I want only the results based on the exam in which I appear. The exam is held in September or October. But suppose the internal assessment is made and he gets higher marks, now he can't go back. Then he is stuck with just this one opportunity of the written exam. The second alternative is that he wants only the internal assessment and says I won't opt for the written exam. Now he gets very low marks in the internal assessment. The chance of improving then is not available to him", explained the AG.

 "That is a conscious choice made by him. What is the difficulty of the board? What we are suggesting is that at the outset, you give the option to the students to give online confirmation as to how many of them are willing to appear in the exam. Now those students who opt for written exams won't go for internal assessment. Let them take that chance! It is their problem! They are taking the decision on their own as of their own sweet will, you are not forcing it on them!", said Justice Khanwilkar.

 "Then you are giving them only one opportunity by giving that option at the outset. Right now, if they have high marks, they won't take the risk of the written exam. Now you are saying do away with one option. As the persons who have been regulating the exam for 70-80 years, we feel that students have the right to know what they have scored and then take a considered decision whether they want to take the exam or not.This suggestion is really counter-productive. What Your Lordships should look at is if it is against the interest of the students to take a decision before they know what their internal assessment marks are", said the AG.

 "Would a particular candidate be in a position, at the threshold, to work out how many marks he is going to get in the internal assessment? There is a moderation provided, but that moderation would depend upon several factors, some of which are not known. Would a candidate be in a position to know exactly where he would stand or would that happen only after the moderation exercise is done? This moderation is dependent upon several unknown factors which at present are not known. If that is so, then Mr. Vikas Singh's suggestion is doubtful. Then the candidate cannot make an intelligent choice", noted Justice Maheshwari.

 "That is exactly the position. He won't know in the beginning how much he would get", replied the AG.

 "Is it your suggestion that the student would perform his own internal assessment first?  If the option of taking the exam is exercised first, then there will be no internal assessment of those students", Justice Khanwilkar put to Mr. Singh.

 "The moderation will only make it a little plus or a little minus, not very much difference. Otherwise, I will know where I stand", said Mr. Singh.

"The effect of accepting your submission would be that the student would have only one option, either to go for internal assessment or for a written exam. Will that be in the interest of the large number of students? Would the majority be interested in appearing for the exam for improvisation?", asked Justice Khanwilkar.

 "The whole thing can be done simultaneously. If at all there will be a third wave, it will be in September/October.  Today, we are at the lowest so far as COVID cases are concerned. Every day, it is going lower and lower. So both the things can be done simultaneously and then there will be only one result then. I don't want one result and then improvisation and then another result. The uncertainty of the students will be so much then. The parents and the students want it at one go!", advanced Mr. Singh.

 "Now, you are mixing up your arguments. Nobody is able to predict when the third wave would be. Somebody is saying September, somebody is saying sooner", said Justice Khanwilkar.

 "The experts who the Attorney is referring to also say that the third wave will be in October. The positivity rate has come down now by the maximum extent! The physical improvement exam can now be held easily. The paper, everything is ready. The exam and the assessment can be done simultaneously. Then there will be only one result. Future courses, college admissions, engineering, medical, everything is dependent on this. If I have to do an improvement later, then an improvement will deprive me of whatever opportunities are there for this year. I will be left with opportunities only for next year", pressed Mr. Singh.

 "One direction can be conceived of- that we direct all boards to have their result declaration on a particular day. So that the whole issue of losing opportunity and somebody marching ahead of other candidates will not arise", ventured Justice Khanwilkar.

 At this point, the AG submitted that the Controller of Exams is present and he says that after 31st of July, the UGC will call for the results from ICSE, CBSE and the state boards and then the process of college admissions will be signalled by the UGC, the UGC will wait for all the boards to declare the result. When Mr. Singh pointed out that this must include the written exam results, the AG replied that the written exam will depend upon Covid.

 Justice Khanwilkar pointed out that if one is not happy with their result, they may go for improvisation, but for that purpose, the entire admission process for the next year may not be stopped. "If they hold the exam in August and September, the result will be declared in October", said the judge. 

 "We don't want the result to come so late that we are not considered for this year for any admission", pressed Mr. Singh.

  'In larger public interest, that suggestion cannot be accepted", said the judge.

 "The first three components (of the formula for internal assessment), a person may still be in the position to know- performance in classes 10th, 11th, 12th etc. But what about the performance in the last six years on the basis of which the weightage is given and the moderation is conducted? Any candidate would not be in a position to know that to be able to straight away exercise the option today. He won't know where he is going to stand. None of us know when the examination would be able to be held. We all hope that it would be between August and September but we still can't leave everything on an uncertainty", said Justice Dineshwari.

 "Look at the trend of Covid. Today it is at the lowest. Exam can easily be held in July. Then there will be one result. We would be all at the same footing...they are saying September/October and every expert is saying that that will be when the third wave will happen. Why can't they have the exam in July? Questions are ready, they have done all the arrangements, nothing is remaining", pressed Mr. Singh.

Justice Khanwilkar observed that the bench is not impressed by this argument. "We don't want to create this uncertainty situation for the students", said the judge.

 Noting that as ICSE records, only 10 students had appeared in the written exam last year, the bench inquired about the number for last year for CBSE. SG Tushar Mehta said that the number was 15,000. "That situation was very different. That is because exams had been held last year and it was only a few papers which were remaining...", urged Mr. Singh

 Senior Advocate Jaideep Gupta, also for some students, advanced that they are not in acceptance of this idea that "a batch should go into limbo" by Mr. Singh's suggestion- "If the results are not declared for the whole batch on 31st of July and some people say that they will wait for the improvisation exam, then they will also come and say that there cannot be any other admissions. That will create a problem. If it is not possible to hold the exam in August, then those students will come and say 'What about us? We don't have a result'. Then the entire batch is destabilised"

"We were also told some students are willing to go abroad for further student studies", pointed out Justice Khanwilkar. 

 "We are not willing to backtrack everything. We have come so far. We have seen the scheme and prima facie, we feel that giving the option at the beginning may not work", said Justice Maheshwari, concurring.

 Finally, as regards this suggestion that the option to appear in the exam for improvisation should be afforded at the initial stage itself and that the results of the internal exam assessment should be declared together with results of this exam, the bench held that this suggestion may not be taken forward. "It will result in denial of options to the students and a delay in declaration of result. There will be uncertainty until the examination for improvisation is actually conducted and results are declared. On the other hand, if the students are given the option of accepting the internal assessment marks, the results for which will be declared on 31st of July, despite declaration of those results, they will still have the option of appearing in an exam for improvisation", said the bench.

 However, as regards the prayer for declaration of results on the same day, the bench recorded that the AG has pointed out that UGC will be issuing necessary instructions to ensure admission processes to colleges and universities for further studies should commence after declaration of results by CBSE, ICSE and the state boards.


[Private/Compartment candidates] 'UGC to instruct colleges to not commence admission process till result is declared, so it is not that seats will be filled up by regular students'- SC

Concerns regarding the schemes for evaluations

 On Monday, Mr. Vikas Singh had pointed out certain discrepancies between the scheme of assessment evolved by the CBSE and the ICSE and had prayed that the parameters be uniform.

 To this, the AG replied, "ICSE is independent and CBSE is independent. There are 32 state boards. Therefore, it is not possible to synchronise all of them together and have one uniform system. This has been existing now for decades. Everybody is a separate autonomous body which decides for itself"

Mr. Jaideep Gupta pointed out that last year also, the court had recognised that the two boards will have some distinction.

 [Past performance of school considered in assessment of student] 'Composite scheme evolved by experts taking into account all aspects to not prejudice students; not open to us to second-guess'-SC

 Justice Khanwilkar indicated to the AG Mr. Singh's concern that the scheme takes in to account the performance of previous three years of the school, which has nothing to do with the performance of the candidate. 

 "We have some schools which charge huge fees and have hostels and swimming pools. So far as they are concerned, they form a particular class. Therefore, each one of the schools each year will have similarity about the class of students. The performance for each one of the three years is used to find out if they have exaggerated the score this year", explained the AG.

 "What if a student has taken admission in a better school which secures better marks than his earlier school? Then you could get the benefit of that. And vice versa", pointed out Justice Khanwilkar.

 "This is what the experts have decided after their experience of so many decades. They said we will be able to compare the performance year after year", said the AG.

 "Is it so essential to have this criteria?", asked the judge. 

 Replying in the affirmative, the AG explained that the expert body has found that the difference in the total average year after year is very little for each school. "For 2017-18, you take the total marks and divide them by the number of students you get 72%. In 2018-19, you find 76%. Then, for the next year, you get 74% . You find that the average performance is accessible by looking at the total number of marks divided by the number of students. Therefore, they say this is the yardstick- 72 to 76%. Then, that is compared with this year to find out the correctness if they have given marks in pre-board examinations to the extent of 80%- 90%. The problem is that there is no public examination, no written examination which used to decide things once and for all. This method will prevent any exaggerated marking; it will be only 5% more or 5% less than this average"

 "We will assume that this is a good parameter for indicating assessment. But why is ICSE not providing for this parameter?", asked Justice Khanwilkar.

 "ICSE should answer that", said the AG. The senior advocate appearing for ICSE advanced that they have a standard deviation formula, where they look at 6 years' performance for the benefit of the student. "Maybe in one year they have done much better. So we give them the benefit for that", he said.

 "So both formulas look into averaging and ensure that no prejudice is caused to the student.", noted the bench.

 "But if one has done exceptionally well, it should not be brought downwards in the moderation exercise. Upwards is alright, but where a student has done exceptionally well, just because the predecessor batches have done averagely, he should not be made to suffer on that account. It should not be that he has got 95% and there is moderation based on the past three batches, then he can get only 78% and not 95", prayed Mr. Singh.

 "We find force with the submissions of the AG that by the composite scheme, as formulated by the expert body of 13 members, all aspects were taken into account by it on the basis of which the final decision to cancel the exam was taken, including the formulation of the scheme to ensure that no candidate or student is prejudiced. It is not possible for us to adopt a second-guess approach as submitted by Mr Singh", declared the bench.

 [Manipulation of marks by CBSE schools] AG says any exaggeration of marks in registers would amount to forgery; SC records satisfaction that broad-based result committee will duly inspect registers

 On Monday, Mr. Singh had urged that while the ICSE schools have frozen the records of the students and the same have been called for by the Board to undertake the assessment exercise, CBSE is allowing the schools themselves to perform the computation, leaving scope for manipulation.

 On Tuesday, the AG answered, "For 10th standard, there is a public examination and those marks cannot be altered in any manner. For 11th standard, it is written into the registers what marks have been received. Then in 12th, the pre-board marks are written in a standardised manner...Nobody thought the situation is going to come when no written examination would be held and internal assessment would be made. If the schools are now going to give higher marks, they would have committed forgery. Each one of those marks is an act of forgery for which seven years' is the punishment. Would any principal permit that? If we find that marks have been exaggerated, then the result committee, consisting of the principal, 2 teachers and 2 external teachers and perhaps also an expert from outside will go through the records and decide"

 "10th and 11th marks have been given a weightage of 30% each and they are on record, so there will not be no problem. The problem is only the 40% weightage to class 12th. You have indicated that the assessment will be based on unit test, mid-term and pre-board examination. Are any of these marks available with the board?", asked Justice Maheshwari.

 When the AG replied that the board does not have access to them and that they are recorded in the registers of the school, the judge noted that the board will have to have an independent person crosscheck the same.

 "That is why the result committee is there. It has three outsiders. And they have to give the rationale for their decisions in moderating the marks. This is the best that can be done in the circumstances", said the AG.

 "Why can't you take unit test or mid-term or pre-board uniformly for all the schools? Out of these three components, is it not possible to take any one uniformly for all schools?', asked the judge.

 'If we take all, it is better for the student. If a student is unable to perform well in one exam, then the next exam or the previous exam would show if he is good or bad", replied the AG.

 When the bench asked if the board takes the average of all 3, the AG replied, "The result committee will decide which ones are suitable to the students. The result committee for the school may decide weightage to be given to each exam based on the credibility and reliability. The committee may be of the view that only pre-board exams be taken into consideration and more weightage may be given to that exam or it may feel that equal weightage be given to mid-term, pre-boards and unit test"

 "This will be for the entire batch or candidate wise?". asked the bench.

 "It is for the entire school, all the students", said the AG.

 "Then it is all the more reason that the candidate will not be able to know how much marks he would be getting. He would not know in advance", observed Justice Maheshwari in context of Mr. Singh's prayer that the option may be exercisable at the outset.

 'This situation is arising for first time. We have had to innovate as to what is the best for the students. According to me, 13 experts have put their heads together and this has been confirmed by the court. They have spent a long period on how to tackle this Covid situation. Whether written exam will be available in August/September is something which nobody can say. The problem is that each student's life is important. It is protected by Article 21. If they are compelled to go for the exam, like in the case of NEET etc, and I don't know how they are doing that either, and if a number of students contract this disease, and suppose a student dies, who is to blame? The parents will sue the person who is compelling them. So it is not advisable to have a written examination in the midst of Covid", said the AG.

 The senior advocate appearing for ICSE also advanced that experts have said that children are the most vulnerable in the third wave and that they have had no vaccination which adds to this danger. 

 "Possibility of CBSE schools manipulating the record of the data on which the internal assessment will be conducted and which is not in the custody of the CBSE does not impress impress us. AG says that the broad-based result committee will be examining all aspects of the matter and take a decision on the basis of the register of the concerned school which will be duly inspected by the committee", recorded the bench.