Amit Padha And Ors vs Ut Of Jammu And Kashmir And Ors
2021 Latest Caselaw 423 j&K

               HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU



                                                 WP(C) 1954/2020
                                                 CM Nos. 7381/2020,
                                                 639/2021

                                                 Reserved on 29.03.2021
                                                 Pronounced on 01.04.2021

Amit Padha and ors                                             ..... Petitioner (s)

                               Through :- Mr.Rohit Verma Advocate

                         V/s

UT of Jammu and Kashmir and ors                               .....Respondent(s)

                               Through :- Mr. B.S.Bali Advocate for R-1 to 4
                                          Mr. R.P.Sharma Advocate for R-5.


Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                                JUDGMENT

1 The petitioners are minor and have filed this writ petition through

their respective fathers. The petitioners were students of Matriculation in the

Krishtu Jyoti Convent School, Samba and had appeared in the annual

examination of Matriculation for the session Regular-2020. As per the results

and the the Matriculation mark-sheets issued by respondent No 2, petitioner

No.1 was declared not qualified for promotion to 11th class for he had obtained

E1 and E2 grade in Mathematics and Social Science subjects. Petitioner No.2

was also not declared qualified for promotion to 11th class as he had obtained

E1 grade in Mathematics. Similarly, petitioner No.3 too was not declared

qualified for 11th class for the reason that he had obtained E2 grade in Social

Science subject in Matriculation examination. Consequently, the petitioners

applied as private candidates for Matriculation examination in the subjects they 2 WPC 1954/2020

had not qualified in the Regular Annual examination-2020. After the

petitioners had applied as private candidates for Matriculation examination in

the subjects they had failed in the annual examination, respondent No.2 issued

a Notification bearing No. F(Acad-C)B/A-P(Pvt.)/X/XII)SZ/20 dated

19.09.2020 providing for mass promotion of candidates having passed in two

or more subjects in Matriculation examination. It is pleaded that respondent

No.2, after promulgating the decision with regard to mass promotion of

candidates as aforesaid, declared the result on 21.10.2020, but the petitioners

could find their names in the list of qualified candidates.

2 The petitioners claim that they immediately approached

respondent No.1 and enquired about their exclusion from the benefit of mass

promotion. Respondent No.1, after going through the records, apprised the

petitioners that they could not be given the benefit of promotion as their

applications forms along with examination fee were never received by

respondent No.1. The petitioners immediately approached the Sub-office of JK

BOSE at Samba, which in turn, advised them to approach respondent No.5. It

is complained by the petitioners that respondent No.5 initially dilly dallied the

matter and wasted entire one month in the process, but later on, admitted its

fault in the month of November and took shelter to the situation that had arisen

due to COVID-19 infections for not processing their applications and sending

them to respondent No.1. The petitioners claim that thereafter they made all

possible efforts to see that their applications along with fee which they had

already submitted to respondent No.5 reaches respondent Nos.1 and 2 and they

are also given the benefit of mass promotion as had been given by respondent

No.1 to several candidates similarly situated with the petitioners. It is in this

backdrop, the petitioners after having failed to persuade respondent No.1 to 3 WPC 1954/2020

accept their belated application forms and fee, filed the instant petition seeking

inter alia a direction to respondent Nos. 1 to 3 to accept their examination fee

for biannual examination of Matriculation and declare them having passed

Matriculation in terms of the Notification dated 19.09.2020 (supra).

3 On being put on notice, respondent Nos. 1 to 4 and respondent

No.5 have filed their separate objections. In the objections filed by respondent

Nos. 1 to 4, it is submitted that the writ petition as against respondent No. 1 to

4 is without any cause of action. It is submitted that in terms of Notification

aforesaid, the benefit of mass promotion to the candidates of 10th class

examination private biannual Session 2020 Summer Zone area of Jammu

provide was only extended and applicable to the candidates who would submit

their permission-cum-admission form of 10th class examination to the Board

within the time stipulated therefor. It is submitted that for the purpose of

submission of permission-cum-admission forms, the Board had issued a

Notification dated 07.08.2020 with the last date fixed for the purpose as

17.08.2020. Keeping in view Covid-19 restrictions and the situation arising

therefrom, the date was extended from 17.08.2020 to 7.9.2020 and thereafter to

15.09.2020. It is, thus, submitted that after two extensions granted, the cut off

date to submit the permission-cum-admission forms by the candidates to the

Board was 15.09.2020. Since even before the extended cut off date i.e

15.09.2020, neither the permission-cum-admission forms of the petitioners, nor

the fee was received, therefore, there was no question of considering the

petitioners for mass promotion in terms of the Notification dated 19.09.2020.

4 Respondent Nos. 1 to 4 have, thus, pleaded that after completion

of the exercise, the result of mass promotion was declared on 21.10.2020 and

thereafter, the process was closed. It is submitted that the respondents-Board 4 WPC 1954/2020

received the request from the petitioners for accepting their application forms

and examination fee on 2nd and 3rd of November, 2020 and, therefore, it was

not possible to accept the request of the petitioners much after the cut off date

and the declaration of results of the eligible candidates.

5 Respondent No.5, in the objections filed by it, has not denied the

fact that the applications forms and the examination fee was submitted by the

petitioners with its institution in the month of July 2020, but it is claimed that

due to unprecedented situation created by Covid-19 infections in the Union

Territory of Jammu and Kashmir, the functioning in all the offices had come to

a grinding halt. It is in these circumstances, respondent No.5 could not process

the permission-cum-admission forms of the petitioners and submit their fee to

the Board Authorities. Other than ipsi dixit of respondent No.5 there is no

cogent explanation tendered for the omission.

6 Having heard learned counsel for the parties and perused the

record, it is not in dispute that the petitioners were eligible for mass promotion

in terms of Notification dated 19.09.2020 issued by respondent No.2. It is also

true that as per the said Notification followed by a Notification issued by

respondent No.1 on 07.08.2020, the candidates eligible for mass promotion in

the matriculation examination were obliged to submit their permission-cum-

admission forms along with prescribed fee on or before the cut-off date fixed

by the Board Authorities. As is evident from the reply affidavit of respondents-

Board and the Annxures R-2, R-3 and R4, in the initial notification, the cut off

date was 17.08.2020 which was extended to 07.09.2020 and ultimately, it was

further extended to 15.09.2020. It is equally true that the Board Authorities had

made it crystal clear that no admission-cum-permission forms shall be

entertained after the expiry of the prescribed date. It is further evident from a 5 WPC 1954/2020

reading of Annexures R-2, R-3 and R-4 that the candidates were advised to

deposit their admission-cum-permission forms along with prescribed fee in the

Board either themselves or through the institutions concerned. The petitioners,

thus, had been given the option to deposit the forms and fee directly in the

office of the Board or route them through their institution.

7 In the instant case, the petitioners had performed their obligations

well within the prescribed time. They deposited their application forms as also

the prescribed fee with respondent No.5 i.e., the institution from where they

had appeared in the regular examination of Matriculation. This was done by the

petitioners in the month of July, 2020 itself. However, respondent No.5

because of sheer negligence and oversight or for some other reason, did not

forward the applications forms and the requisite fee of the petitioners to the

Board office, as a result whereof, the Board did not receive any request from

the petitioners and, therefore, did not consider them for mass promotion.

Respondent No.5 has attributed this omission to the situation that had arisen

due to Covid-19 restrictions. In these circumstances, the question that arises for

consideration is, as to whether the petitioners, who are minor students of 10th

class, should be made to suffer for the willful default or otherwise of

respondent No.5. The answer to this question has to be 'no'. Whatever was

required to be done by the petitioners in terms of notification dated 19.09.2020

read with the subsequent notifications issued by respondent No.1 was done by

the petitioners in time. It is the Board that had given an option to the petitioners

to either submit their application forms and prescribed fee in the Board directly

or through their institution. They adopted the second alternative and submitted

their applications forms along with prescribed fee to respondent No.5 in the

month of July, 2020 itself i.e, well before the cut off date. Had respondent No.5 6 WPC 1954/2020

acted with sense of urgency and responsibility, the application forms and the

prescribed fee submitted by the petitioners would have reached the Board in

time and the petitioners would have got the benefit of mass promotion and

would have been declared qualified Matriculation. There is absolutely no

dispute with regard to the eligibility of the petitioners for such mass promotion

as provided in the Notification 19.09.2020.

8 In the aforesaid factual backdrop, there are two alternatives to deal

with the situation. So far as the first alternative goes, Respondent No.5, on

account of whose negligence the petitioners have suffered, can be held

accountable and directed to adequately compensate the petitioners. The other

alternative is to take a pragmatic and equitable view of the matter by directing

the Board Authorities to perform the ritual of accepting the admission-cum-

permission forms of the petitioners and prescribed fee and declare their results

in terms of Notification dated 19.09.2020. In the given facts and circumstances,

the possibility of respondent No.5 having failed to deposit the admission-cum-

permission forms and the prescribed fee due to the reasons beyond its control,

cannot be fully ruled out. Holding respondent No.5 responsible for its acts, that

too, in the absence of any specific material, would not, in any manner, inure to

the benefit of the petitioners.

9 For the foregoing reasons and having regard to the totality of facts

and circumstances obtaining in the case, I am of the considered view that ends

of justice would be met if this Court directs the JKBOSE to accept the

admission-cum-application forms of the petitioners along with prescribed fee

which was deposited by the petitioners with respondent No.5 in the month of

July, 2020 and declare their results of Matriculation by giving the benefit of

mass promotion as envisaged under the Notification of respondent No.2 dated 7 WPC 1954/2020

19.09.2020. I order accordingly. Let the needful as aforesaid be done by

respondent No.1 without any further waste of time and, in any case, not later

than two weeks from the date a copy of this judgment is served upon it.

Writ petition is allowed in the aforesaid terms.

(SANJEEV KUMAR) JUDGE Jammu 01.04.2021 Sanjeev

Whether the order is speaking: Yes

Whether the order is reportable: Yes/No