HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 39 Case :- SPECIAL APPEAL No. - 211 of 2011 Appellant :- Poonam Shukla Respondent :- State Of U.P. & Others Counsel for Appellant :- R.B. Tripathi,C.B. Yadav Counsel for Respondent :- C.S.C.,Ghanshyam Maurya,Umesh Vats Hon'ble Dilip Gupta,J.
Hon'ble Vinod Kumar Misra,J.
This Special Appeal has been filed under Chapter VIII Rule 5 of the Allahabad High Court Rules by the writ petitioner for setting aside the judgment and order dated 13 July 2010 of a learned Judge of this Court by which Writ Petition No.2518 of 2008 that was filed by the appellant was disposed of with certain directions.
The writ petitioner took admission in Sri Shiva Mahavidyalaya, Kaptanganj, Azamgarh1 which is affiliated to the Veer Bahadur Singh Purvanchal University, Jaunpur2 in B.A. Part I in the Academic Year 1992. She appeared at the B.A. Part I examination in 1992, B.A. Part II examination in the year 1993 and B.A. Part-III examination in the year 1994. Thereafter, the writ petitioner submitted an application seeking admission to the Special B.T.C. Training for the year 1994. In the mark-sheet enclosed by the petitioner, while seeking admission to the aforesaid Special B.T.C. Training Course, the total marks obtained by the petitioner in B.A. Part-I, B.A. Part-II and B.A. Part-III examinations were indicated as 1045 out of 1800 marks. It is on the basis of the aforesaid marks that the quality point marks of the writ petitioner were determined by the District Basic Education Officer and she was selected for the Special B.T.C. Training Course. After successful completion of the training, the writ petitioner was granted appointment as an Assistant Teacher in a Primary School at Deokali, in Block Gola, of district Gorakhpur. Thereafter, a verification was sought by the District Basic Education Officer from the University about the marks obtained by the writ petitioner in the B.A. Examinations for the reason that a direction to make payment of salary to the Assistant Teachers could be given only after verification of the marks. The University sent a communication dated 23 January 2007 to the District Basic Education Officer that the mark-sheet submitted by the petitioner did not reflect the correct marks obtained by the petitioner. As a consequence thereto, a notice dated 14 February 2007 was issued by the District Basic Education Officer requiring the petitioner to show-cause as to why action should not be taken against her. The petitioner submitted a reply to the notice. Thereafter the District Basic Education Officer passed an order dated 29 September 2007 cancelling the appointment of the petitioner as Assistant Teacher. It is this order dated 29 September 2007 that was assailed by the appellant in the writ petition.
The learned Judge examined the Tabulation Chart of B.A. Part I, B.A. Part-II and B.A. Part-III examination produced by the University and noted that in B.A. Part I the petitioner secured only 215 marks whereas in the mark-sheet that was submitted before the District Basic Education Officer, while seeking admission to the Special B.T.C. Training Course-2004 the petitioner had indicated 315 marks. The learned Judge, therefore, noted that the total marks obtained by the petitioner would come to only 945 out of 1800 as against 1045 out of 1800 indicated by the petitioner. The learned Judge however, observed as there was nothing on the record to suggest that the petitioner was responsible in submitting a forged mark-sheet, particularly when there was a variation in the Tabulation Charts produced by the College and the University, it could not be ruled out that the a wrong mark-sheet was issued to the petitioner. In such circumstances, the learned Judge directed the District Basic Education Officer, Gorakhpur to find out whether the petitioner could have been admitted in the aforesaid course on the basis of the marks actually obtained by the petitioner. In other words, the District Basic Education Officer was required to find out whether the petitioner could have been granted admission to the Special B.T.C. Training Course-2004 if she had obtained 945 marks out of 1800. The learned Judge further directed that in case the petitioner could have been granted admission then in that case the petitioner should be allowed to continue on the post of Assistant Teacher and to that extent the impugned order dated 29 September 2007 would stand quashed. However, in case a finding was recorded that the petitioner could not have been granted admission to the Special B.T.C. Training Course-2004 then in that case the petition shall stand dismissed. During the course of hearing of this Special Appeal, the Court directed the learned counsel appearing for the University to produce the Tabulation Charts of the University as also the College and having noticed from even a bare perusal of the Tabulation Charts of the University and the College that there was overwriting and interpolation in the Tabulation Chart of the College as a result of which the marks obtained by the petitioner in B.A. Part I increased from 215 to 315 and as the petitioner alone stood benefited by the said increase, the Court issued notice to the appellant to explain why the Court should not delete that part of the direction of the learned Judge by which the District Basic Education Officer was required to determine whether the petitioner could have been granted admission to the Special B.T.C. Training Course-2004 if she had actually got 945 marks out of 1800. The Court also required the appellant to explain why the Court should not direct for holding of an enquiry to determine the correct facts.
A reply to the aforesaid notice has been filed by the appellant. It has been stated that the Tabulation Charts of marks obtained in the examination are prepared by the University. One copy is retained by the University and the other is sent to the affiliated College. It is on the basis of the Tabulation Chart that is sent to the College by the University that the marks-sheets are issued to candidates by the Colleges. The mark-sheets that were issued to the writ petitioner were on the basis of the Tabulation Charts prepared by the College and that the marks reflected in the mark-sheets issued to the writ petitioner are in accordance with the marks shown in the Tabulation Charts. It is only when the show-cause dated 14 February 2007 that was issued by the Basic Shiksha Adhikari that the writ petitioner came to know that the marks shown in the mark-sheets issued to the writ petitioner by the College are different from the marks recorded in the Tabulation Chart maintained by the University. When the writ petitioner sought clarification from the University, she was informed that in fact, the earlier report that she had obtained 1045 marks out of 1800 was not correct and that she had actually obtained only 845 marks out of 1800. It has also been stated that even the learned Judge found that the petitioner had obtained 945 marks out of 1800 and even if the marks obtained by the writ petitioner in the Graduation examination are taken to be 945 out of 1800 instead of 1045 out of 1800 then too her name would still appear in the merit list.
We have heard Sri R.B. Tripathi, learned counsel appearing for the appellant and Sri Vivek Varma, learned counsel appearing for the respondent-University.
Learned counsel for the appellant submitted that the mark-sheet that was issued to the writ petitioner reflected the marks mentioned in the Tabulation Chart sent by the University to the College and, therefore, it cannot be said that a wrong mark-sheet had been submitted by the writ petition before the District Basic Education Officer while submitting her application for admission to the Special B.T.C. Training Course-2004. It is his submission that even if there was any mistake in the Tabulation Chart sent by the University to the College, then too the petitioner cannot be held responsible. The submission of learned counsel for the appellant is that there was no necessity at all for the learned Judge to direct the District Basic Education Officer to re-examine the matter because the appellant had actually been granted admission to the B.T.C. Course on the basis of a correct mark-sheet. Learned counsel for the appellant also submitted that when the respondents in the writ petition had not filed any Special Appeal, it is not open to the Court to examine this issue in the Special Appeal filed by the appellant. In support of his contention learned counsel for the appellant has placed reliance on the decisions of the Supreme Court in Mohinder Singh Gill & Anr. Vs. Chief Election Commissioner, New Delhi & Ors.,3; and Hassan District Central Cooperative Bank Limited Vs. Joint Registrar of Cooperative Societies & Anr.4 and of a Division Bench judgment of this Court in Radhey Shyam Srivastava Vs. State of U.P. & Ors.,5.
Learned counsel appearing for the respondent-University has, however, submitted that the mark-sheet submitted by the writ petitioner to the authorities while seeking admission to the Special B.T.C. Training Course-2004 was evidently a forged mark-sheet which had been prepared on the basis of interpolations made in the Tabulation Chart sent by the University to the College. It is his submission that in response to the query made by the District Basic Education Officer, the University had clearly indicated that the actual marks obtained by the writ petition were 845 out of 1800. In this connection, learned counsel for the appellant pointed out that the writ petitioner had actually obtained 215 marks in B.A. Part-I examination, 273 marks in B.A. Part II examination and 357 marks in B.A. Part-III examination, but the mark-sheet which the petitioner had submitted at the time of seeking admission in the Special B.T.C. Course indicated that the writ petitioner had obtained 315 marks in B.A. Part-I examination, 373 marks in B.A. Part-II examination and 357 marks in B.A. Part-III examination. Learned counsel also submitted that there can be no estoppel against law and, therefore, the writ petitioner cannot claim any benefit on the basis of the mark-sheet issued by the College if it did not reflect the correct marks as recorded in the Tabulation Chart of the University. It is his contention that the writ petitioner alone had to benefit by any interpolation in the Tabulation Chart of the College.
We have carefully considered the submissions advanced by learned counsel for the parties.
What is not in dispute is that the writ petitioner had been granted admission to the Special B.T.C. Training Course-2004 on the basis of the B.A. Mark-sheet submitted by the writ petitioner which indicated that the writ petitioner had obtained 1045 marks out of 1800 marks. The writ petitioner was thereafter offered appointment as an Assistant Teacher on the basis of these marks. It is only when the District Basic Education Officer sought verification of the marks from the University that it came to the light of the authorities that the writ petitioner had submitted an incorrect mark-sheet and, accordingly, a notice to show-cause was issued to the writ petitioner. It is after consideration of the explanation submitted by the writ petitioner that the appointment of the writ petitioner as an Assistant Teacher was cancelled by the order dated 29 September 2007.
The learned Judge after perusal of the Tabulation Chart produced by the University observed that the mark-sheet submitted by the writ petitioner was not correct inasmuch as the petitioner had actually obtained 945 marks out of 1800 marks. In order to satisfy ourselves about the genuineness of the mark-sheet that was submitted by the writ petitioner while seeking admission to the Special B.T.C. Training Course-2004, we called for the original records from the University. Learned counsel appearing for the respondent-University has pointed out that in regard to candidates admitted in Colleges affiliated to the University, two Tabulation Charts are prepared by the University. One Tabulation Chart is retained by the University while the second is sent to the College concerned. It is on the basis of this Tabulation Chart sent to the College that mark-sheets are issued by the affiliated College to the students. It is, therefore, his submission that the marks recorded in the Tabulation Chart maintained by the University are authentic and any interpolation of marks done in the Tabulation Chart at the level of the College and the issuance of mark-sheets on its basis would not confer any right on a candidate.
Learned counsel appearing for the respondent-University has produced both the Tabulation Charts before the Court. The Tabulation Chart of B.A. Part-I retained by the University clearly shows that the writ petitioner with Roll No.119097 had been awarded the following marks:-
Hindi Paper I 29 Paper II 41 Total 70 Sociology Paper I 54 Paper II 31 85 History Paper I 16 Paper II 44 60 Grand Total =215 The Tabulation Chart of the College, however, shows that the following marks had been awarded. Marks indicated in bold figures indicate the variation:-
Hindi Paper I 59 Paper II 41 Total 100 Sociology Paper I 54 Paper II 31 85 History Paper I 66 Paper II 64 130 Grand Total =315 We have perused the Tabulation Chart sent to the College for B.A.I year examination. Even a bare perusal of this Tabulation Chart of the College clearly shows interpolation in the marks. Marks have been erased in Hindi and History papers and it is more than apparent that 29 marks obtained in Hindi Paper I have been changed to 59 and total of 70 in Hindi Paper has been changed to 100. Likewise, 16 marks in paper I of History have been changed to 66 and 44 marks awarded in Paper II have been changed to 64. The Total in this paper has also been changed from 60 to 130.
Even in respect of the B.A. Part-II, we find that from the records of the University that interpolation in the marks appears to have been done. It is doubtful whether the writ petitioner had obtained 373 or 273 marks. This is because the printed marks of B.A. Part II of the writ petitioner in the B.A. Part-III mark-shet are mentioned as 488 but they have subsequently changed by hand to 588. It is only if the writ petitioner would have obtained 273 marks that the total marks of the writ petitioner in B.A. Part-I and B.A. Part-II would come to 488. It is for this reason that the University had written to the District Basic Education Officer that the total marks obtained by the writ petitioner in B.A. Examination were only 845 out of 1800 and not 1045 out of 1800. The B.A. Part-III mark-sheet of the University also shows that the marks obtained by the writ petitioner were 845 but they have been cut and by hand have been increased to 945 on 28 April 2010. We also find from the Tabulation Chart of the University that there are cuttings and interpolations in respect of the marks obtained by other candidates also. This is a serious matter with which we shall deal later.
What also transpires from the records is that a communication dated 18 February 2008 was sent by the District Basic Education Officer to the University seeking certain queries. A perusal of the said letter reveals disturbing facts. It indicates that in response to an earlier communication dated 23 January 2007 sent by the District Basic Education Officer to the University, a communication dated 13 June 2007 was alleged to have been sent by the University. This letter is also on the record. A perusal of this communication shows that the University informed the District Basic Education Officer that mark-sheet submitted by the writ petitioner showing that the petitioner had obtained 1045 marks out of 1800 to be correct. However, on verification, it was found that the University had not sent the letter dated 13 June 2007. At this stage it also needs to be stated that the University had sent a communication to the District Basic Education Officer indicating that the marks contained in the mark-sheet submitted by the petitioner were not correct and it is on the basis of this letter that the appointment of the writ petitioner had been cancelled. The District Basic Education Officer, therefore, in order to find out the correct position sent the communication dated 18 February 2008 to the University. It is in response to this communication that the University had sent the letter dated 4 April 2008 mentioning therein that there was a difference in the actual marks obtained by the petitioner and the mark-sheet submitted by the writ petitioner. The communication also mentions that the letter dated 13 June 2007 said to have been sent by the University had never sent and the petitioner had actually obtained 845 marks out of 1800 marks in the B.A. Examination.
The petitioner, therefore, submitted a forged mark-sheet to the authorities while seeking admission to the Special B.T.C. Training Course-2004. The issue that would arise for consideration is whether in such circumstances the petitioner was entitled to any relief in proceedings under Article 226 of the Constitution.
It is correct that mark-sheets are issued to candidates on the basis of the marks indicated in the Tabulation Chart sent by the University to the College. It is, however, evident that Tabulation Chart of the College of B.A.I examination has been interpolated and such interpolation seeks to confer benefit on the writ petitioner as the total marks increase from 215 to 315. The manner in which the interpolation has been done is clear from the Tabulation Chart. The stand of the University is also that even the B.A.II marks have been tampered with as is evident from the B.A. Part-III mark-sheet of the University wherein the printed marks of the writ petitioner for B.A. Part-I and B.A. Part-II have shown as 488 but this has been cut by hand and replaced by 588. The total marks of B.A. Part-I, B.A. Part-II and B.A. Part-III are shown as 845 but this has been deleted and has been replaced by 945 on 28 April 2010 as it transpires from the Tabulation Chart. Therefore, the stand taken by the University that the writ petitioner had actually obtained 845 marks out of 1800 may be correct but this would, however, require an enquiry to be conducted at the level of the University.
The submission of learned counsel for the appellant is that once a mark-sheet had been issued by the College and that mark-sheet reflects the marks shown in the Tabulation Chart of the College, than the principles of estoppel will apply and the marks cannot subsequently be corrected. This issue has been examined time and again by Courts and it has been held that there can be no estoppel in law. Thus, if a wrong mark-sheet had been issued to a candidate, no right would accrue to him to contend that despite the mark-sheet being wrong, any correction cannot be carried out. In such circumstances when the writ petitioner alone stood to gain from any interpolation carried out in the Tabulation Chart to increase the marks, it cannot be doubted that the interpolations were done at the instance of the writ petitioner. The learned Judge was, therefore, not justified in directing the District Basic Education Officer to examine as to whether the writ petitioner could have been granted admission to the Special B.T.C. Training Course-2004 if she had obtained 945 marks out of 1800 marks. A person who has submitted a mark-sheet that does not reflect the correct marks to seek admission is not entitled to any relief from a Court exercising jurisdiction under Article 226 of the Constitution. We, therefore, have no hesitation in deleting that part of the direction issued by the learned Judge for re-examination of the matter by the District Basic Education Officer to ascertain whether the writ petitioner could have been granted admission even if the marks obtained in B.A. were treated as 945 instead of 1045 out of 1800.
The contention of learned counsel for the appellant that this Court should not delete the direction that had been issued in favour of the appellant since the respondents had not filed any Special Appeal, does not deserve acceptance.
In paragraph-8 of the judgment of the Supreme Court in Mohinder Singh Gill (supra) on which reliance has been placed by learned counsel for the appellant, it has been held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. This decision of the Supreme Court has been relied upon by a Division Bench of this Court in Radhey Shyam Srivastava (supra). In paragraph-8 of the decision of the Supreme Court in Hassan District Central Cooperative Bank Limited (supra), on which reliance has also been placed by learned counsel for the appellant, it has been held that the validity of a Rule that was not under challenge and that too in an appeal by the Bank challenging in the order directing implementation of the award, should not have been pronounced upon.
In the instant case, notice had been issued by the Court to the appellant to submit her explanation as to why that part of the direction issued by the learned Judge for re-examination of the matter by the District Basic Education Officer should not be deleted. In the explanation offered by the petitioner it was merely stated that the mark-sheet that was issued by the College was on the basis of the marks entered in the Tabulation Chart of the College and, therefore, the writ petitioner cannot be said to be at fault. This explanation of the appellant, cannot be accepted in view of the finding recorded in the earlier part of the judgment wherein it has been found as a fact that the Tabulation Chart of the College had been tampered with and this had resulted in conferring undue benefit on the petitioner.
The Tabulation Chart is a sacred document and no person can be permitted to make any interpolation in it. In the present case, we find that not only was the Tabulation Chart of the College tampered with, but the Tabulation Chart of the University also appears to have been tampered.
We would, therefore, direct the Vice-Chancellor of the University to cause an enquiry to be done in regard to the manipulations done in the Tabulation Charts of the University and the College. This direction should not only be restricted to the case of the writ petitioner but in all such cases where the Vice-Chancellor of the University finds that the marks have been tampered with. The enquiry should be concluded expeditiously and preferably within a period of two months from the date of service of a certified copy of the order. A copy of the order shall also be sent by the Registry of the High Court to the Vice-Chancellor of the University. On completion of the enquiry, appropriate disciplinary proceedings, if so warranted on the basis of the enquiry report should be instituted. The Vice-Chancellor of the University may also consider whether a First Information Report is required to be lodged against the persons found to be responsible for the tampering.
The Special Appeal is, accordingly, disposed of by modifying the operative part of the order of the learned Judge to the extent indicated above. The writ petition shall also stand0 disposed of in the aforesaid terms.
Though the Special Appeal has been disposed of, the enquiry report which has been directed to be concluded within two months shall be placed before the Court in a sealed cover. The University shall also indicate what further steps the University is intending to take on the basis of the enquiry report.
Order Date :- 16.9.2015 NSC (Dilip Gupta, J) (Vinod Kumar Misra, J.)