21. Insofar as the higher education is concerned, the State can prescribe higher marks than the one prescribed by the Central agency namely NCTE, AICTE and MCI and the same is settled as per the judgment of the Supreme Court reported in (2004) 4 SCC 513 (State of Tamil Nadu v. S.V.Bratheep). Insofar as the elementary education is concerned, the same having been declared as a fundamental right upto the age of 14 by insertion of Article 21A of the Constitution of India in the year 2002 and the statutory protection given under Act 35 of 2009, which came into force from 1.4.2010, the students upto the age of 14 are entitled to exercise the said fundamental right as well as the statutory rights conferred on them by the Constitution of India as well as the Right of Children to Free and Compulsory Education Act, 2009. It is also settled proposition of law that even a candidate who has successfully completed 10th standard Board examinations cannot be denied admission for a particular group in the same school in XI standard on the ground that he has not scored the cut-off marks for admission to the particular group. The said issue was considered by the Supreme Court in the decision reported in (1995) 5 SCC 512 (Principal Cambridge School v. Payal Gupta) and the supreme Court in paragraphs 5 to 10 held that prescription of certain percentage of marks for admission to a particular group in XI standard of the students, who passed out in 10th standard in the same school is unsustainable and no one can be denied of admission in the XI standard on the ground that he has not secured the cut-off marks for admission to a particular group in XI standard. The said Judgment was followed by the Division Bench of this Court in the decision reported in (2007) 4 MLJ 400 (D. Aravinth v. State of Tamil Nadu) which is also approved by the Supreme Court in the decision reported in (2009) 1 SCC 794 (Principal Kendriya Vidyalaya v. Saurabh Chaudhary).
22. Section 30 of Act 35 of 2009 is also taken note of by the Division Bench of this Court in the decision reported in 2010 WLR 401 (Krishnagiri District Private Schools Association v. The State of Tamil Nadu & Another) while considering the validity of Uniform System of School Education Act, 2010 (Tamil Nadu Act 8 of 2010). In the said judgment the Division Bench of this Court in paragraph 55(iv) struck down Section 3(2)(b) of the State Act as the same is in contravention of Section 30(1) of the Central Act. Section 3(2)(b) of the State Act enables the authorities to follow the norms for conducting examinations. The said Act of the State is made applicable from the academic year 2010-2011 in the light of the implementation of Act 35 of 2009 with effect from 1.4.2010.
23. Thus, there is a statutory prohibition for failing a student and retaining in the same standard for any reason, including the reason that the student has scored very low marks in the examinations conducted, either in the class examinations or in Term examinations including final examinations. When the Central Act prohibits holding back of any child in any class in the age group of 6 to 14, who will normally be undergoing classes in standards 1 to 8 as per the definition mentioned above, I am of the view that the first respondent Department or any other officer is not competent to issue any norms for giving promotion to students of standards 1 to 8, as the promotion to higher class is automatic. Even though the conduct of examination is not prohibited under Section 16, getting pass marks in number of subjects is not required for giving promotion to higher class. The object behind the said provisions is that no student should leave the school within the age group of 6 to 14 for any reason, i.e., due to non-payment of fee, not passing the examination, etc. When right to education upto the age of 14 is guaranteed as a fundamental right under Article 21A of the Constitution of India, and right to free and compulsory education also has now been declared as a statutory right apart from fundamental right as per Act 35 of 2009 with effect from 1.4.2010, as rightly contended by the learned counsel for the petitioner the department cannot issue any circular giving direction to the third respondent or any other school authority to give promotion by fixing any norms to students of standards 1 to 8.
24. In fine, it is ordered that the action of the department in issuing circular dated 5.4.2010 which is admittedly after coming into force of the Central Act 35 of 2009 with effect from 1.4.2010 is clearly illegal and the same is declared as invalid. The third respondent following the circular only took the impugned decision of holding back the son of the petitioner in 6th standard due to scoring of low marks in the annual examination. When the circular dated 5.4.2010 is declared as invalid and the petitioner's son having established his right to get admission in 7th standard in terms of sections 4, 16 and 30 of the Act, which prohibits holding back of any student in the same class, the action of the third respondent in holding back the petitioner's son in 6th standard without promoting him to the 7th standard is also illegal.
25. On the basis of the above finding and in the light of Article 21A of the Constitution of India as well as the provisions contained in Act 35 of 2009, the impugned order is set aside and the respondents are directed to promote/admit the son of the petitioner in 7th standard in the third respondent school forthwith. As the learned counsel for the petitioner during the course of the arguments submitted that the petitioner is willing to apply for Transfer Certificate and the learned counsel for the third respondent school also expressed her willingness to issue Transfer Certificate, it is open to the petitioner to apply for the Transfer Certificate and get admitted his son in 7th standard in any other school of his choice. It is made clear that as Section 15 of the Act prohibits expulsion of a child from the School, the third respondent cannot issue Transfer Certificate compulsorily, without any request made by the petitioner. If Transfer Certificate is to be issued to the petitioner's son by the third respondent on the voluntary request made by the petitioner, the third respondent is directed to issue Transfer Certificate stating that the son of the petitioner, namely Tamil Prabhakara Udayam is promoted to 7th standard.