Shailaja D/O Ramakant Paliwal ... vs Divisional Board Of Secondary And ...
2003 Latest Caselaw 642 Bom

JUDGMENT

D.D. Sinha, J.

1. Heard Shri Jibhkate, learned counsel for the petitioner and Shri Parsodkar, learned counsel for the respondent.

2. Rule is made returnable forthwith by consent of parties.

3. The petitioner has challenged the communication dated 5th June, 2003, whereby the petitioner was informed by the R. S. G. K. Agrawal High School that he is debarred from appearing in the Examination upto October, 2003.

4. It is contended by the learned counsel for the petitioner that the petitioner appeared in the H. S. S. C. Examination held in February-2003 from Centre No. 102-B, R. S. G. K. Agrawal Junior College, Tumsar, District- Bhandara. On 28-2-2003, Flying Squad of the respondent Board visited the said centre and at the relevant time, students were solving the Chemistry-II paper at the centre. The members of the flying squad of respondent Board visited the room where the petitioner and other students were solving their papers and one of the member picked up a printed chit or note from the room, which was lying nearby a place where the petitioner was sitting and solving the paper. The member of the flying squad blamed the petitioner for copying. This fact has been specifically denied by the petitioner at the relevant time and contended that she has nothing to do with the piece of paper which was lying near her and, therefore, she was not involved in malpractice/copying.

5. Learned counsel for the petitioner alternatively contended that even otherwise the piece of paper which was found lying near the desk of the petitioner, where she was solving Chemistry-II paper, is related to the subject of Political Science and it has nothing to do with the paper which the petitioner at the relevant time was solving on the day in question. It is, therefore, contended that all these relevant factors were not taken into consideration by the Standing Committee. However, all these factors, in fact, were considered by the Enquiry Officer, who had exonerated the petitioner from the charge of malpractice. It is contended that, on the backdrop of the above referred facts, the action of the Standing Committee holding that the petitioner was involved in malpractice is bad in law, and it cannot be sustained.

6. Learned counsel for the respondent contended that the piece of paper was, in fact, recovered from the petitioner. He, however, does not dispute the other factual aspects referred to hereinabove. It is contended that the petitioner appeared before the Enquiry Officer on 3-4-2003 and her statement was recorded. The defence of the petitioner was that of denial and it is a fact that the Enquiry Officer has exonerated the petitioner. However, the Standing Committee on assessing the concerned answer paper and copying material, reached to the conclusion that the petitioner had indulged in unfair means and as per the Rules in this regard, awarded punishment, under Clause 13. It is contended that Clause 13 contemplates that if on the examination centre, even a plain paper is brought or even the material which is not connected with the subject is brought, in the examination hall even then it amounts to malpractice and, therefore, for that a punishment is prescribed for cancellation of performance of that examination and debarring for one more examination. It is contended that under Clause 13, the Standing Committee, in view of the above referred facts and circumstances, came to the conclusion that the petitioner was involved in malpractice.

7. We have considered the contentions canvassed by the respective counsel and perused the written submission/reply filed on behalf of respondent/Board. This, in fact, is an unfortunate case where the performance of the petitioner for the concerned examination is cancelled and she is also debarred for appearing for one more examination. It is, no doubt, true that Clause 13 of the list of punishment, provides that if the material which is brought by the candidate in the, examination hall though not connected with the question paper which the candidate is solving at the relevant time amounts to malpractice. However, in a given set of circumstances, the rule needs to be considered on the rational basis and in proper perspective.

8. In the instant case, it is not in dispute that the piece of paper which was seized by the flying squad and the recitals in that paper has nothing to do with the paper which the student was solving at the relevant time i.e. Chemistry-II. In a situation like this, the members of the flying squad as well as the members of the Standing Committee should consider such case rationally and in a manner which should not result in unnecessary, illogical and uncalled for harsh punishment on the students concerned to the extent of cancellation of his performance and debarring him from his future examination. In the instant case, the Enquiry Officer taking into consideration all these aspects, in our considered view, was justified in exonerating the petitioner from the charge of malpractice. However, the decision arrived at by the Standing Committee, in our considered view, in the facts and circumstances of the present case, is bad in law and it cannot be sustained.

9. In the facts and circumstances hereinabove, the decision of the Standing Committee dated 5th June, 2003 is hereby set aside. Similarly, the communication dated 5th June, 2003 issued by the R. S. G. K. Agrawal High School, Tumsar is also set aside. The respondent is directed to declare the result of the petitioner within three weeks from today.

10. The writ petition stands allowed. Rule is made absolute in above terms with no order as to costs.