MONARK MONALISA Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONER No. 1 claims to be a student with extraordinary merit. He wants to undertake matriculation examination conducted by the Bihar School Examination Board but his application to the Board has been rejected on ground of being grossly underage. He is about ten years old. The Board 'sstand is that, in view of Article 291 of the Bihar Education Code , no student, below the age of fourteen, can be permitted to take the matriculation examination. In practice also, it has so been done consistently. Counter affidavit has been filed on behalf of the Board.

(2.) IN my view, it is not necessary to dwelve upon this matter any further in view of the provisions of Article 291 of the Bihar Education Code itself. Bihar Education Code which even though is a non - statutory document Article 291 itself startes with the word "ordinarily". Thus, this Court finds that the rule, as contained in Article 291 of the Bihar Education Code restricting the age, is not an absolute rule. It leaves a discretion on the authorities to take an appropriate decision, appropriate to the facts. It must be remembered where a discretion is conferred on any authority or a person then he has to exercise the discretion in a manner appropriate to the facts and cannot fetter his discretion in absolute terms. Petitioner No. 1 has brought on record his academic achievements and recognitions to justify his case being considered as an exceptional case. In my opinion, it would be proper for the authorities of the Board to first apply themselves to the said facts and come to necessary finding with regard to his merit. My attention is drawn to a policy decision taken by the Secretary Dr. Brij Kishore Giri of the Board as far back as on 23.8.1989. The policy decision is in furtherance to Article 291 of the Bihar Education Code because under no statute that has been brought to my notice, there is any such mandatory restriction. The policy decision itself, thus, is discretionary, as noted above.

(3.) IT cannot be an absolute rule that a student below the age of fourteen cannot be permitted to appear for examination. I may only recall one of the cases in relation to one Master Tathagat Avtar Tulsi. By an order passed in Civil Writ Petition No. 4386 of 1996, he was permitted by the Delhi High Court to appear in the matriculation examination conducted by the Central Board of Secondary Education in the year 1997. l assume he passed meritoriously even though he was grossly underage. It is so because in the year 1998, he applied to the Patna University for being permitted to appear in B.Sc. Parts I, II & III Examinations altogether in the same year and this Court vide orders passed in CWJC No. 2223 of 1998 permitted him to appear in the said examinations in the year 1998 itself though at that time apparently he was grossly underage to even appear in matriculation examination. The fate/result is not known as having appeared in the examination, the writ petition was disposed of as infructuous and records of the case, except the order -sheet, have not been preserved by this Court. I have only noted the said matter to show that there is no mandatory cut -off provided but that should not be taken that any one or every one underage can be allowed to appear. Such permission is to be an exception and, thus, being an exception can only be granted in exceptional circumstances of which the Board is the best Judge.