SAMARTH MITTAL Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) On 30th June, 2015 when this petition came up first, the following order was passed:

(2.) The counsel for the respondent No.2 Central Board of Secondary Education (CBSE) today has in Court handed over the response affidavit which is taken on record. However, on inquiry, whether any plea other than that which was raised on 30th June, 2015 has been taken in the counter affidavit, the counsel for the respondent No.2 CBSE fairly states that the defence of the respondent No.2 CBSE remains the same, that as per the Circular issued by the CBSE, revaluation of the answer sheet in the subject of Physical Education is not permissible. It is further argued that there was a similar circular in the year 2014 also. Yet another argument is that the amended Bye-law 61 is to be interpreted as empowering the CBSE to limit the subjects in which revaluation is permitted. Reliance in this regard is placed on State (NCT of Delhi) Vs. Sanjay, 2014 9 SCC 772 (para Nos. 66 to 68) to contend that even where the rule uses the word "shall" it is permissible to read the same as "may" and on the same parity, the words in the Bye-law "in the manner as prescribed by CBSE from time to time" have to be read as including a power to the CBSE to restrict the subjects in which re-evaluation can be permitted. It is also stated that this has been the regular/consistent practice of the CBSE.

(3.) On query, whether the Bye-law stands on a higher footing than the Circular, the counsel fairly states that while Bye-law is made in accordance with Clause 18 of the Government Resolution dated 10th July, 1929 constituting the CBSE, the Circular is administrative in character and does not dispute that a Bye-law would be on a higher pedestal than an administrative circular.