Swapna D/O Tulsidas Gajare Since ... vs The Divisional Secretary, ...
2007 Latest Caselaw 918 Bom

JUDGMENT

P.V. Kakade, J.

Page 1989

1. Heard learned Advocate for the petitioner as well as the respondent - Board.

2. In view of the facts and circumstances, Rule. Rule is made returnable forthwith by consent and taken up for hearing.

3. The petitioner has filed this petition seeking relief against the respondent Board to the effect that directions be issued to the respondent to the extent that the order of impugned punishment imposed upon the petitioner by the Respondent be quashed declaring it to be null and void and against the settled principles of law. The petitioner further sought directions to the respondent-Board to declare result of the petitioner for the 10th standard examination conducted in March, 2007.

4. The factual matrix involved in the dispute is to the effect that the petitioner is a student of Saraswati Bhuwan Secondary and Higher Secondary School, Jalna. She appeared for the 10th i.e. SSC examination conducted by the respondent in March, 2007 through Marathi medium. The petitioner is the student of the said school since beginning and her performance is said to be excellent.

5. In the year, 2007 i.e. on 13.3.2007 the SSC examination commenced for which, she appeared for Sanskrit language paper and the examination commenced at 11 a.m. During which time, a flying squad of the respondent entered in the examination hall in which the petitioner was writing the paper. At that time, the squad found the small chit on the ground near the bench of the petitioner and the said chit was seized by the officer of the flying squad and the petitioner was questioned as to how and under what circumstances she was copying. Thereafter, the petitioner informed that she did not know to whom the said chit belongs and as to how the said chit was kept there. However, original answer book of the petitioner was taken in possession by the flying squad and the petitioner was provided fresh answer book for writing her remaining paper.

Page 1990

6. Thereafter, on 9.4.2007 a show cause notice was issued to the petitioner and on 24.4.2007, the petitioner appeared before the respondent. The petitioner was asked to answer certain questionnaire and the petitioner replied it reiterating her contention that the said chit did not belong to her and the squad took the said chit lying on the ground and attached it to the paper of the petitioner. The petitioner states that in her presence, the concerned officer put his remark on the paper and during the course of checking the supervisor did not find any copying material with the petitioner. According to the petitioner, proper opportunity was not given to her. The petitioner states that on 26.6.2007 she came to know that the respondent came to the conclusion that the petitioner had indulged in unfair means during the SSC examination conducted by the respondent in March, 2007 and, therefore, the performance of the petitioner in the said examination was treated as cancelled and the petitioner was debarred for the period up to October, 2007 from appearing to the examination. In other words, the case of the petitioner is that the respondent Board has displayed total non application of mind while imposing the said punishment.

7. In the course of argument, it was submitted on behalf of the petitioner that the entire conduct displayed by the respondent was contrary to the procedural rules which are required to be followed by the respondent and as such, the petition should be allowed.

8. Per contra, it was submitted on behalf of the respondent - Board that the petitioner was found guilty of malpractice in the course of the examination and, therefore, no leniency should be shown to the petitioner. It was further submitted that it was not a fit case to invoke the provisions of Article 226 of the Constitution of India and hence, the petition was sought to be dismissed.

9. In this regard, it is pertinent to note that we have called for and perused the entire original record. Suffice it to say that the Enquiry Officer clearly recorded the finding in his report that the petitioner was not guilty of adhering to the malpractice and, therefore, she should be given benefit of doubt. The Standing Committee, which is bound by the Rules of procedure, thought it fit to differ with the finding recorded in the Enquiry report to the effect that the petitioner should be given benefit of doubt and her result should be declared. The Standing Committee disagreed with the enquiry report and petitioner was held guilty as she was found in possession with copying material and, thereafter, proceeded to impose the punishment of cancellation of performance of the petitioner in the said examination plus barring her appearance in the next one attempt for said examination.

10. Now, procedural Rule 12 of the Maharashtra State Boards Procedure Rules For Inquiry reads thus:

12. The Standing committee shall not be bound to give detailed reasons in support of its order or decision but shall record its reasons if it disagrees with the findings or recommendations of the inquiry and under such circumstances the standing committee need not give hearing to the delinquent concerned.

11. In other words, it is not incumbent upon the Standing Committee to give reasons in detail if its findings are in support of the report. However, it Page 1991 is obligatory on the part of the Standing Committee to record its reasons if it disagrees with the findings recorded in the report of the enquiry. In the present case, there is absolutely no reason recorded by the Standing Committee. What is recorded is the consequence of the decision of the Standing Committee in one sentence i.e. the candidate was guilty as she was found possessing copying material. In our considered view, this would not amount to recording of any reason as to why the Standing Committee disagreed with the Enquiry Committee, especially when the committee disagreed with the findings recorded by the Enquiry Officer.

12. In this regard, the learned Counsel for the respondent sought to put reliance on the ruling of the Apex Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and Ors. , wherein, in similar situation, the procedure adopted in the enquiry proceedings came to be challenged and it was observed by the Apex Court that no reasons need be recorded in the course of the enquiry especially, when there were no disputed facts and the students had admitted the fabrication but, denied their involvement. Therefore, on facts as well as law, the ruling would not be applicable to the present case.

13. The learned Advocate for respondent also sought to put reliance on the ruling in the case of Gujarat Secondary Education Board and Anr. v. Sunny Dharampal Singh Chaudhary and Anr. . However, perusal of the said ruling shows that it has absolutely no application to the present set of facts and circumstances involved in this petition and, therefore, we need not address ourselves to the details thereof.

14. It was further submitted that this is not a fit case to invoke the provisions of Article 226 of the Constitution of India as no interference is required in the present case. However, in this regard we must know that the facts and circumstances involved herein definitely show that it is a fit case to invoke the provisions of Article 226 of the Constitution of India as the petitioner is subjected to injustice especially, when the Standing Committee appears to have committed basic error in infringing its own procedural rules by not recording the reasons for disagreeing with the finding recorded by the Enquiry Officer. Be as it may, the fact remains that the petition deserves to be allowed.

15. Hence, Rule is made absolute. Petition is allowed in terms of prayer Clauses (B) and (C) and stands disposed of with no order as to costs. At this stage, the learned Counsel for the respondent sought stay of the order. In view of the facts and circumstances, the plea for stay stands rejected. Authenticated copy may be given to the parties.