Bombay High Court
Laxman Sadashiv Mansapure vs The State Of Maharashtra And Ors on 15 November, 2016
Bench: S.V. Gangapurwala
WP 1716/11 with CA 5361/14
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1716/2011
WITH
CIVIL APPLICATION NO.5361/2014
Laxman S/o Sadashiv Manaspure,
Age-30 years, Occu:Service,
R/o Jamb (Bk),Tq.Mukhed,
Dist-Nanded.
..Petitioner..
Versus
1] The Maharashtra State Board of Secondary
& Higher Secondary Education Board
(Through its Divisional Secretary)
Latur Divisional Board,Latur.
2] The Divisional Secretary,
Maharashtra State Board of Secondary
& Higher Secondary Education Board,
Latur Division, Latur.
3] Zilla Parishad, Nanded,
Through its Chief Executive Officer.
4] The Education officer(Primary)
Zilla Parishad,Nanded
5] The Head Master,
Zilla Parishad Primary School,
Damala Tanda,Tq.Diglur,
District-Nanded.
...Respondents...
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WP 1716/11 with CA 5361/14
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.....
Shri U.R.Awate, Advocate h/f Shri S.B.Talekar,Advocate
for Petitioner.
Ms.S.S.Raut, AGP for Respondent no.1.
Smt.A.S.Rasal, Advocate for Respondent No.2.
Shri S.G.Kawade, Advocate for Respondent No.3 & 4.
.....
CORAM: S.V. GANGAPURWALA &
K.L. WADANE, JJ.
DATE: 15.11.2016
ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :
1] Heard learned counsel for the parties. Rule.
Rule made returnable forthwith and with the consent of
learned counsel for the parties, the petition is taken up
for final disposal at this stage.
2] The performance of the petitioner of H.S.C.
Examination for March, 1999, is canceled vide the
impugned communication dated 9.9.2010. The same is
assailed in the present writ petition.
3] Mr.Auti, learned counsel for the petitioner
submits that the petitioner had appeared for H.S.C.
Examination for the first time in March, 1998, and had
secured 53.57% marks. To improve his performance, the
petitioner again appeared for H.S.C. Examination as an
external candidate in March, 1999 and secured 69.67%
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marks. Pursuant thereto, the petitioner got admission in
D.Ed. course. He completed his D.Ed. in 2002 and on
25.6.2003 was appointed as an Assistant Teacher. After
11 years, the performance of the petitioner of H.S.C.
Examination for the year March, 1999, was canceled. The
same was without notice to the petitioner. According to
the learned counsel, the Rules nowhere bar appearance for
the second time to improve the performance. The learned
counsel submits that in absence of any provision
authorizing the respondents to cancel the performance of
an examination appeared for the second time, the impugned
communication is illegal. The learned counsel relies on
the judgment of the Division Bench of this Court in a
case of Rameshwar v. Divisional Secretary reported in
2009 (2) Mh.L.J., 363. The learned counsel submits that
even subsequently, the respondent - Board has issued a
notification thereby permitting the class improvement.
The said notification is dated 4/5-6-2008.
4] Mrs.Rasal, learned counsel of the respondent -
Board submits that the provision for class improvement at
the relevant time was only permissible if a candidate had
failed in the examination. In that contingency only, he
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was allowed to appear for the second time for the said
examination. The said facility is not available to
candidate, who has passed his examination. The Rules
nowhere permit the petitioner to appear for the second
time even after passing the same examination. The
impugned communication is perfectly legal and valid and
within the powers of the Board.
5] The learned AGP also supports the contention of
the learned counsel for the Board.
6] We have considered the submissions canvassed by
the learned counsel for the respective parties.
7] The factual matrix as narrated above is not
disputed. The petitioner had passed the H.S.C.
Examination in March, 1998. Thereafter, to improve his
performance, had appeared for H.S.C. Examination for the
second time in March, 1999 as an external candidate. It
is not the case of the respondents that the petitioner
had suppressed some material facts. The petitioner,
pursuant to his performance in H.S.C. examination of
March, 1999, had appeared for D.Ed. examination, passed
D.Ed. examination in the year 2002 and was appointed as
Assistant Teacher in 2003. After long slumber of 11
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years, the said performance is sought to be canceled by
the respondent - Board. In such an event, after long
slumber of 11 years, the respondents would be estopped
from canceling the performance. It is not a case that
immediately after appearing for the H.S.C. Examination
for the second time, action was taken by the respondent -
authorities. The Division Bench of this Court in the
case of Rameshwar, referred to supra, has observed that
it would not be appropriate of the Board to cancel the
performance after long period on the basis of the
principle of 'promissory estoppel'.
8] Considering the aforesaid conspectus of the
matter and further the fact that all the parties have
acted upon the performance of the petitioner of H.S.C.
Examination of March, 1999, it would be inappropriate to
unsettle the said position after period of 17 years.
9] In the light of the above, the impugned
communication is quashed and set aside. Rule is made
absolute in terms of prayer clause [B].
10] As the writ petition is allowed, the learned
counsel for the petitioner does not press his challenge
to Regulation 92 of the Maharashtra Secondary and Higher
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Secondary Boards Regulations, 1997.
11] Rule is made absolute in above terms. No costs.
12] In view of disposal of writ petition, Civil
Application No.5361/2014 also stands disposed of.
(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)
ndk/c1511164.doc
