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Gauhati High Court · body

1994 DIGILAW 222 (GAU)

Bhaskar Jyoti Paul v. State af Assam and Ors.

1994-12-13

A.K.PATNAIK

body1994
In this writ application, under Article 226 of the Constitution of India, the petitioner has challenged the action of the Assam Higher Secondary Education Council in withholing his result of the Higher Secondary (Science) Examination, 1994 and has prayed for a direction on the respondents to declare his results. 2. The brief facts as stated in the writ petition are that the petitioner took the Higher Secondary (Science) Examination, 1994 in March, 1994. Thereafter the results of the examination were declared in the month of May, 1994 but the petitioner's results were not declared. On the request of the petitioner, the Principal of the Lumding College of which the petitioner is a student wrote to the Secretary of the Higher Secondary Education Council, Assam by a Memo dated 31.8.94 and requested him to declare the results of the petitioner or to intimate the cause for withholding his results. Simultaneously, the petitioner also submitted a representation dated 9.9.94 before the Secratary, Assam Higher Secondary Education Council requesting him to inform him the cause of withholding his result. As there was inordinate delay on the part of the Assam Higher Secondary Education Council in declaring the petitioner's results or disclosing the reasons for withholding his results, the petitioner had no alternative remedy but to move this Court for expeditiously relief on the ground that the action of the Assam Higher Secondary Ecucation Council is arbitrary and violative of Article 14 of the Constitution of India. 3. On behalf of the respondent Nos. 1,2 and 3 a common affidavit-in-opposition has been filed by the Controller of Examination, Assam Higher Secondary Education Council in which he has stated that one Miss Nilu Paul, Lecturer and Head of the Department of Zoology, Lumding College addressed confidential letter dated 10th May, 1994 to him stating that she was the Invigilator on duty for the examination on the day in the room in which the petitioner was sitting for the examination and that the petitioner was copying from his fellow examinee and during the last minute of examination he was found copying from a written manuscript and that she being a lady teacher it was not possible on her part to search the petitioner physically. On receiving the said complaint of the Invigilator it was decided to place the matter before the Enquiry Committee and the petitioner was summoned to give a statement on the said complaint and the petitioner gave this written statement on 11.7.94. Thereafter one Shri SK Mishra, Lecturer in English, Lumding College, Lumding, who was a Co-invigilator, confirmed the allegation of Miss Nilu Paul by a letter dated 24.8.94 to the Controller of Examination, Assam Higher Secondary Council. It is further stated in the affidavit-in-opposition that the entire matter has been placed before the Unfair Means Scrutiny Committee constituted by the Council and until the matter is examined by the said Committee and finally decided, under the Regulations for Conduct of Higher Secondary Examination framed under the Assam Higher Secondary Education Act, 1984, the Council has the power to withhold the result of the petitioner. 4. An affidavit-in-reply has been filed by the petitioner in which he has denied the allegation of mal-practice against him and he has stated that Miss Nilu Paul who has alleged adoption of unfair means by the petitioner at the examination is a cousin of the petitioner and the relationship between the family of the petitioner and that of Miss Nilu Paul is hostile and inimical and the two families are not in talking terms with each other. The petitioner has further stated that the letter dated 10.5.94 sent to the Controller of Examination nearly after two months of examination in March'94 has been written with an ulterior motive and with a view to settle a personal score with the petitioner. Regarding the letter dated 24.8.94 of the Co-invigilator, Shri SK Mishra, the petitioner has stated that nothing restrained the Co-invigilator, who was not a lady, to take action against the petitioner. It has been further stated in the affidavit-in-reply that the Council cannot withhold the result of any candidate on the basis of a report made against him by an Invigilator after substantial lapse of time and under the Rules Invigilators are required to take action within the examination hall. The petitioner has further made a grievance that on account of the delay in declaration of his results, the petitioner is not in a position to prepare for the ensuing test examination in the 1st week of December, 1994 and the final examination which is to take place in February, 1995. 5. The petitioner has further made a grievance that on account of the delay in declaration of his results, the petitioner is not in a position to prepare for the ensuing test examination in the 1st week of December, 1994 and the final examination which is to take place in February, 1995. 5. At the hearing of the writ petition, Mr. Sharma, learned counsel for the petitioner, submitted that it was not fair on the part of the Council to have entertained a complaint made by an Invigilator two months after the examination and that, under the Rules, a report-regarding unfair means adopted by candidate can be made only by the Principal of the College who is in-charge of the examination. Mr. Sharma further submitted that before withholding the result of the petitioner, the Council should have observed the principles of natural justice. Mr. Sharma relied upon the decisions of the Supreme Court in the case of KL Shephard vs. Union of India ( AIR 1988 SC 686 ) wherein it has been held in paragraph 15 that fair play is a part of the public policy and the system of rule of law and every social agency conferred with power is required to observe the same. Mr. Sharma also cited to decisions reported in AIR 1992 Karnataka 79 and (1994) 1 GLR 112 (1994X1) GLJ 66) in which it has been d laid down that principles of natural justice have to be strictly followed before taking action against candidate adopting unfair means and against students resorting to indiscipline. Mr. Sharma also took me through the contents of the letter dated 10th May, 1994 of Miss Nilu Paul to show that the allegations of malpractice against the petitioner were vague and unreliable. Mr.Sharma vehemently argued that the Council cannot indefinitely withhold the results of the petitioner on such vague, unreliable and belated allegations of malpractice against the petitioner. 6. In reply, Mr. Prasad, learned counsel for the respondents, submitted that under the amended clause 36 of the Regulation for Conduct of Higher Secondary Examination made by the Assam Higher Secondary Education Council in exercise of its powers under the Assam Higher Secondary Education Act, 1984, the Council has the right to withhold the results of any candidate who is suspected to adopt unfair means till the final disposal of the case. He Accordingly submitted that since the complaint of unfair means against the petitioner has been referred to the Unfair Means Scrutiny Committee and the said Committee has not yet disposed of the case of the petitioner, the Council was fully empowered to withhold his result. Mr. Prasad further submitted that since he Unfair Means Scrutiny Committee has not given its findings, and no disciplinary action has yet been taken against the petitioner, no grievance can be made at this stage that principles of natural justice have been violated and the writ petition is premature. Mr. Prasad also submitted that these days a large number cases of unfair means adopted in examination are being detected and referred to the Unfair Means Scrutiny Committee of the Council and it is not possible for the Committee to complete its enquiry within a short time. Mr. Prasad however submitted that at best a direction may be given to the Council to complete the enquiry and take a decision on the complaint against the petitioner within a stipulated time. 7. There is no dispute regarding the position that the Assam Higher Secondary Education Council has been vested with powers under Regulation 36 of the Regulations for Conduct of Higher Secondary Examination (for short the Regulations) made under the Assam Higher Secondary Education Act, 1984 to withhold the results of 'any candidate suspected to have adopted unfair means' till the final disposal of the case. But the question for determination in this case is as to whether the said power to withhold the results of any candidate can be exercised by the Council on the basis of a complaint made by an Invigilator about two months after the examination. Under Regulation 20 of the Regulations an Officer-in-charge for every examination centre has been contemplated and ordinarily Principals of Colleges/H.S. Schools are appointed as Officers-in-charge of the respective centres. Under Regulation 21 of the Regulations, the, Officer-in-charge is required to perform all the duties and functions as given in the 'Instructions to the Officer-in-charge for Conduct H.S. Examination' apended to the Regulations. In Regulation 25 of the Regulations it has been stated that the procedure for appointment and functions of the Invigilator have been incorporated in the Instructions appended to the Regulations and Officer-in-charge of the centre is to see that the Instructions are followed. 8. In Regulation 25 of the Regulations it has been stated that the procedure for appointment and functions of the Invigilator have been incorporated in the Instructions appended to the Regulations and Officer-in-charge of the centre is to see that the Instructions are followed. 8. Instructions to the Officer-in-charge for the H.S. First and Final year Examination provide for detection of unfair practices on the part of the candidate. Paragraph 32 and paragraphs 52 and 54 of the said Instructions are extracted herein below : "32. Special attention of Invigilators should be drawn to the rules for prevention and detection of unfair practices on the part of candidates under examination. It shall be the duty of Invigilatiors, to report any case of infraction, or attempted infraction of such rules forthwith to the Officer-in-charge for his order. Written statements must be given by the Invigilator in each case. Invigilators must give special attention at the time of submission of answer scripts by the candidates so that no candidate escapes the examination hall without submitting his/her answer scripts. 52. Where a candidate is suspected to have used unfair means at the examination in any paper, but the Officer-in-charge has reasons to think that the offence of the candidate has not been clearly established the candidate need net be expelled from the examination. But the Officer-in-charge shall send a special report of each such case to the Controller. This report together with the answer script of the candidate in which he/she has been suspected to have used unfair means, and incriminating documents and a written statement of the candidates in his/her own handwriting together with a report from the Invigilator concerned if any, should be forwarded per registered post in a separate sealed cover addressed to the Controller of Examinations by name. 54. Candidates consulting with one another, copying from others' answer scripts, looking at other's papers, trying to help others' or somehow suspected to be attempting unfair means will be warned by putting down a 'W on their answer scripts and the fact immediately reported to the Officer-in-charge who may expel a candidate if warned more than once. The Officer-in-charge of the Invigilator may at any time search the person of any candidate as mentioned under section 34 of the Regulation. Provided that in case of female candidates the search shall be conducted by a lady Invigilator. The Officer-in-charge of the Invigilator may at any time search the person of any candidate as mentioned under section 34 of the Regulation. Provided that in case of female candidates the search shall be conducted by a lady Invigilator. The Officer-in-charge will immediately at the close of the examination forward to the Controller of Examinations of the Council a complete list of such warned candidates along with written statement of each candidate confessing the guilt." Thus, paragraph 32 of the Instructions to the Officer-in-charge quoted above provides that where an Invigilator finds infraction of the rules relating to unfair practice or attempted infraction of such rules, he or she shall forthwith report the case to the Officer-in-charge for orders and make a written statement and paragraphs 52 and 54 of the said Instructions provide that where the unfair practice is not established against the candidate but the candidate is suspected of unfair practice, the Officer-in-charge will not expel the candidate from the examination but shall send a special report of each case to the Controller of Examination along with the report of the Invigilator, the relevant answer script, the incriminating documents, the written statement of the candidate and a list of warned candidates. But there is no provision anywhere in the aforesaid Instructions to Officer-in-charge for a complaint being made by the Invigilator or a Co-invigilator directly to the Controller of Examination about two months after the examination in respect of an alleged unfair practice by a candidate and hence any such complaint if made by an Invigilator or Co-invigilator long after the examination cannot be treated as a case of 'a candidate suspected to have adopted unfair means' within the meaning of Regulation 36 (II) of the Regulations so as to entitle the Council to withhold the results of his examination, and even if it is conceded that the Council had such power, the exercise of such power would be contrary to such Instructions and arbitrary. 9. 9. In the present case, the Invigilator or the Co-invigilator has not made any report or written statement of any unfair practice alleged to have been committed by the petitioner to the Officer-in-charge during the examination and no report has been made by the Officer-in-charge to the respondent No.2 and the Council has sought to withhold the result of the examination of the petitioner on the basis of a complaint made by an Invigilator directly to the Controller of Examination of the Council by the letter dated 10.5.94 long after the examination-were over in March' 94. It was, therefore, not within the rights of the Council under the aforesaid Regulation 36 (II) of the Regulations read with the Instructions to Officer-in-charge H.S. First of Final Examinations to withhold the result of the examination taken by the petitioner and even if the Council had any such power, the exercise of such power being contrary to the said Instructions was unreasonable and arbitrary and violative of Article 14 of the Constitution. 10. I, therefore, direct that the respondent Nos.2 and 3 shall publish the results of the Higher Secondary (Science) Final Examination of the petitioner by the 31st December, 1994. The writ petition is allowed. There shall be no order as to costs.