J U D G M E N T

MINI PUSHKARNA, J: (ORAL)

1. The present appeal has been filed challenging the judgment dated 6th November, 2023 passed by the learned Single Judge in W.P.(C) 10836/2023. By the impugned judgment, the leaned Single Judge allowed the writ petition filed on behalf of the respondent no.1, thereby holding that the respondent no. 1 has fulfilled the pass criteria for Class XI and is eligible to be promoted to Class XII at the Kendriya Vidyalaya School, Sector-12, Dwarka.

2. Brief facts of the case that are material for deciding the present appeal are as follows:

2.1 The respondent no.1 being a student of appellant no. 1/School i.e. Kendriya Vidyalaya School, Sector-12, Dwarka, New Delhi-110078 opted for English, Business Studies, Accountancy, Economics and Mathematics as his five „main subjects‟. In addition to that, the respondent no.1 also opted for Physical Education as an „additional subject‟.

2.2 The appellant no.1/school is affiliated to the Central Board of Secondary Education (“CBSE”). Since respondent no. 1 obtained less than 33% marks in Mathematics, which are the minimum marks a student must obtain in order to qualify, he was required to take a supplementary examination in that subject. However, even in the supplementary examination held on 19th April, 2023, he was unable to secure 33% marks. Accordingly, the School declared him as an „essential repeat‟ on 29th April, 2023, that is to say, he was asked to repeat Class XI.

2.3 Subsequently, father of the respondent no. 1 addressed a representation dated 20th July, 2023 to the Principal of the appellant no. 1/School, wherein he requested the School not to take into consideration the marks obtained by the respondent no. 1 in Mathematics. It was submitted that the respondent no. 1 was entitled to replace the subject of Mathematics with Physical Education, since he had obtained more than 33% marks in Physical Education. As the respondent no.1 obtained more than 33% in the remaining five subjects and his aggregate percentage in the other five subjects came to a total of 43.6%, it was requested that the respondent no.1 should not be detained as per the provisions of the CBSE Examination Bye- Laws. Since no response was received from the appellant no.1/School, respondent no. 1 filed writ petition being W.P.(C) 10836/2023.

2.4 By the impugned judgment dated 6th November, 2023, the learned Single Judge allowed the writ petition filed by respondent no.1, thereby holding that the respondent no. 1 was entitled to be promoted in terms of the CBSE Examination Bye-Laws. Hence, the present appeal has been filed.

3. On behalf of the appellants, following contentions have been raised:

3.1 The appellant no.1/School is governed and controlled by the Kendriya Vidyalaya Sangthan (“KVS”), which is a body under the Ministry of Education, Government of India. It is submitted that the Kendriya Vidyalaya Schools are governed by the Education Code for Kendriya Vidyalayas (“KVS Education Code”).

3.2 As per Article 106 of the KVS Education Code, in order to qualify for promotion, a candidate must obtain 33% marks in all subjects, without counting the additional subject. The respondent no. 1 has not challenged the Article 106 of the KVS Education Code, therefore, the same is binding upon him.

3.3 Bye-law 40.01 of the CBSE Examination Bye-Laws, which permits to substitute a „main subject‟ with an „additional subject‟, is applicable only to the examinations conducted by the CBSE for Class XII. It is not obligatory upon KVS to follow the CBSE Examination Bye-Laws, since they do not specifically cover promotion of a student from Class XI to Class XII. The CBSE recognizes the autonomy of Schools to conduct the Class XI examinations internally, based on their own pass criteria.

3.4 This Court in the case of Neeti Singh Malik Versus Union of India, MANU/DE/8939/2007, has held that KVS is not subject to Local States Act and Regulation.

3.5 Since Article 106 of the KVS Education Code is a matter of policy, t