Pradumn Dutt Sharma vs Central Board Of Secondary ...
1996 Latest Caselaw 1033 Del

JUDGMENT

Devinder Gupta, J.

1. Rule D.B.

2. The petitioner is a Post Graduate Teacher, imparting education to students in Summer Field School, Kailash Colony, New Delhi. He has felt aggrieved against an order passed on 17.11.1993 (Annexure-VIII) by the respondent-Board declining to appoint him as a Practical Examiner. This petition has been filed under Article 226 of the Constitution of India praying for issuance of an appropriate writ, direction or order commanding the respondents to appoint him as the Examiner of Physics for the Senior School Certificate examination and to quash the order (Annexure-VIII) dated 17.11.1993 issued by the Deputy Secretary, Central Board of Secondary Education.

3. It is alleged that the petitioner has been discharging his duties and functions with honesty, diligence and integrity. He has been enjoying very good reputation amongst his fellow teachers and the students. For the integrity and sincerity of the petitioner, he continued to be a Practical Examiner appointed by the respondents for over 20 years. During AISSC Examination of 1992, one Mrs. Usha Sharma, P.G.T. (Physics) of Kendriya Vidyalaya, Sadiq Nagar, New Delhi was appointed as the External Examiner in Physics for practical examination to be held on 10th and 13th April, 1992 in the school where the petitioner was a teacher. The petitioner observed that one student Arun Tyagi was indulging in some irregularities. According to the rules he ought to have been awarded zero mark, in view of the irregularities. Though the student was entitled to be awarded only zero mark, he was awarded 30 out of 30 marks by Mrs. Usha Sharma. When the petitioner objected to it, Mrs. Usha Sharma told him that the boy was recommended by her Principal Mr. S.D.Sharma and she will award the marks and nobody could stop her from doing so. On refusal of the petitioner to put his signature on the sheet containing Mr. Tyagi's marks, Mrs. Usha Sharma threatened to fail all the students. She threatened that she did not care about C.B.S.E. or Commission. It was under that threat that the petitioner's signatures were obtained, which fact was recorded at the foot of the paper dated 13.4.1992. On the same day, it is alleged that the petitioner in all fairness and in order to bring true and correct facts to the knowledge of the C.B.S.E. sent a letter to the Chairman. The petitioner did not receive any information from the respondents in response to the letter addressed to the Chairman regarding the irregularities committed by External Examiner Mrs. Usha Sharma and the unfair means adopted by Master Arun Tyagi.

4. On 17.12.1992, respondent No. 1 sent a letter to the petitioner informing that the petitioner had been appointed as the practical examiner in Physics for Senior School Examination to be held in March / April, 1993. This letter was written by Mr. B.R. Gupta, Regional Officer, CBSE. The petitioner thus had a reasonable expectation of being appointed as examiner for 1993 and in subsequent years. Nothing was heard by the petitioner for quite some time. The petitioner contacted the Assistant Secretary, Mr. Darshan Lal, who informed the petitioner that his has been cancelled. The petitioner was never informed about such decision and had no notice or information about the same. The petitioner was shocked to learn about it and he wrote a letter to the Regional Officer, respondent No. 2, on 26.3.1993 requesting him to let the petitioner know about his fault for this stem action. The petitioner also sent a letter on the same day to the Chairman reiterating the gist of the entire episode wherein it was clearly stated that a student, who had not completed his practical was helped by corrupt External Examiner and the student was awarded 30 out of 30 marks. On 10.5.1993, the petitioner was informed that he was not being considered as practical examiner in Physics due to a complaint received in the Board. The petitioner was also informed that appointment as Practical Examiner cannot be claimed as a matter of right Again the petitioner represented and sent a letter to the Deputy Secretary, C.B.S.E. on 28.5.1993. It was through letter dated 17.11.1993 that the Deputy Secretary replied stating that the facts were ascertained by the officer of the Board, which revealed that there was professional rivalry between the two teachers, one of which was the petitioner and as such respondents had decided not to appoint any one of them as Examiner.

5. It is the aforementioned act of the respondents, which is under challenge by the petitioner in the instant petition. The petitioner claims that he has not been afforded an opportunity of being heard or to make any representation against the proposed action of the respondents and thus the action is bad in law. The action of the respondents is stated to be arbitrary being violative of Article 14(1)(g) of the Constitution of India. The petitioner states that there is no professional rivalry between him and Mrs. Usha Sharma, who is a teacher in another school and the petitioner is an External Examiner only for two days. By no stretch of imagination, without admitting professional rivalry if at all, the same cannot be a ground as contemplated under Rule 55 for cancelling the examinership. The cancellation of examinership involves civil consequences and undermines reputation of an honest teacher, who has spent his whole life for the benefit and welfare of the students, therefore, the detrimental provision i.e. Bye law 55 has to be strictly construed and no action can be taken against the petitioner without notice and affording an opportunity of being heard.

6. The respondents in their reply filed on the affidavit of Shri S.C.Gupta, Secretary, Central Board of Secondary Education, Shiksha Kendra, 2 Community Centre, Preet Vihar, Delhi have stated that C.B.S.E. is an autonomous society, which is wholly self financed. It is discharging functions of conducting examination, prescribing educational courses and generally maintaining the standards of school education and advising the Government of India, when called upon to do so, on matters pertaining to school education. It is not created under a statute. The C.B.S.E. frames its own rules and is governed by those. It is an autonomous and independent body. It gets no aid, grants or subsidy from the Government. C.B.S.E. is not a State within the meaning of Article 12 of the Constitution of India. The writ petition is not maintainable- On merits, it is stated that the petitioner has concealed material information from the Court. The petitioner has made allegations against a candidate of his own school, whose father is also Head of the Mathematics Department and the complaint of the petitioner appears to be due to some professional rivalry with the father of the candidate. It is stated that on receiving the complaint of the petitioner, an Education Officer Mr. P.C. Bose was appointed to ascertain the facts. Mr.Bose was known to all the parties. After making enquiries Mr.Bose informed that the External Examiner Mrs. Usha Sharma and the petitioner did not have mutual understanding and they wanted to work in their own way, which created problem. On enquiry, it transpired that the father of the candidate, against whom the petitioner had made allegations was the Head of Mathematics Department in the same school where the petitioner is Head of Physics Department. Both of them levelled allegations against each other and had professional rivalry on account of tuition. The petitioner perhaps wanted better marks from the External Examiner for some of the students, which led to the filing of complaint against External Examiner. The External Examiner conducted examinations in other schools, namely, Blue Bell School and Tagore International School, but no adverse report was received against her from those schools. The External Examiner had given high marks to the candidate whose father was Head of the Department in the same school but also to 14 other students (30 marks out of 30 marks) out of the total 70 candidates. The petitioner had also made allegations against the Principal that the External Examiner had given marks to the candidate Arun Tyagi at the instance of the Principal, who had asked her about it. On ascertaining the facts from the Principal, Kendriya Vidyalaya, Sadiq Magar, he denied having known the petitioner the refuted any allegation made against him. He stated that he does not know the candidate and even the External Examiner Mrs. Usha Sharma had joined the school only a day earlier and he did not say anything to her and he has been drawn in the controversy unnecessarily. It is stated in the reply that considering the whole incident and in the interest of the students, the petitioner and Mrs. Usha Sharma were not appointed as External Examiners for the year 1993. The petitioner cannot have any grievance, in the facts and circumstances, in not appointing him as External Examiner since External Examinership cannot be sought as a matter of right. The petitioner does not have vested right to be appointed as an External Examiner.

7. We have heard learned counsel for the parties and have been taken through the entire record.

8. No doubt the petitioner was an External Examiner, on the basis of which the petitioner believed that he had legitimate expectation of being continued as an External Examiner subsequently or in subsequent years. But apart from the legitimate expectation of being considered for being appointed as an examiner, the petitioner has not been able to show that he has got any right of being appointed as an External Examiner. The question whether a person is or is not to be appointed as an External Examiner is a matter which is to be considered by the respondents in the light of Rules and Regulations framed by it. It is stated by the respondent that with a view to have impartial examination with minimum controversy and considering the nature of work, every endeavour is made to appoint only those persons as Examiners, who are not controversial and considering the whole incident and in the interest of the students, the petitioner and Mrs. Usha Sharma were not appointed as External Examiners for the year 1993.

9. The petitioner has not been able to show any right, which vests in him for being appointed as an Examiner. The grievance is that since he was being appointed for the last 20 years as Examiner, he legitimately expected that he would continue as such. The Doctrine of Legitimate Expectation cannot be made basis for claiming any right to be appointed. The legitimate expectation at the most only gave to the petitioner a right to be considered for appointment as an External Examiner for subsequent years. In case the respondents OH consideration decided that in the facts and circumstances two persons who were controversial need not be appointed since the respondents wanted to have impartial examination with minimum controversy and did not thought it fit to appoint the petitioner as Examiner for subsequent examination, no right can be said to have been infringed.

10. In exercise of writ jurisdiction and also in the light of the observations made in State of Maharashtra and Ors. v. Prabhu, , we do not find it to be a fit case for granting relief to the petitioner. According to the petitioner his case is not covered by Clause (ix) of Bye-raw 55, which says that no person of doubtful integrity or one who has been suspended from service or one against whom departmental enquiry is pending or who has been earlier debarred from any work of the Board shall be appointed as an examiner. The petitioner is not a person of doubtful integrity and as such cannot be debarred from consideration. From the reply affidavit, we find that the considerations, which prevailed with the respondents were to conduct impartial examination with minimum controversies and to appoint only those persons as Examiners who are not controversial. Writ jurisdiction being discretionary in character, there can be no manner of doubt that if quashing of the order would result in greater harm to the society, the Court may restrain itself from exercising the power of discretion in issuing writ of mandamus or certiorari.

11. Para-34 of the norms for appointment of Centre Superintendents, Deputy Superintendents/Assistant Superintendents and Examiners embody only executive instructions issued by the C.B.S.E., which cannot confer any right and cannot form the basis for issuing mandamus against the respondents. Norms, which have been set up, are for the purpose of internal management of the respondent. The respondent is not getting any aid, grant or subsidy from the Government. C.B.S.E. has framed its own rules and regulations, which govern it. Since the petitioner's case was duly considered and was not found to be suitable as per the norms, no right of the petitioner can be said to have been infringed in not appointing him as an External Examiner and for the self same reason, the impugned order (Annexure-VIII) is not liable to be quashed.

12. At any rate, in the absence of any enforceable legal right or the violation of any statutory provision and in view of the petitioner's failure to prove any malafides behind the impugned action, we are not prepared to invoke our discretionary jurisdiction for interfering with an administrative action relating to the conduct of examinations.

The writ petition is liable to be dismissed. It is dismissed as such.