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2001 DIGILAW 494 (JHR)

Irshad Ahmad v. State Of Jharkhand

2001-07-23

SUDHANSU JYOTI MUKHOPADHAYA

body2001
ORDER S.J. Mukhopadhya, J. 1. All these case relater to publication of result of Annual Secondary School Examination, 2000 held by the Bihar School Examination Board ("the Board" In short); while three review applications have been preferred by the Board to recall the orders passed by this Court in CWJC No. 1132/2001, CWJC 1301/2001 and CWJC No. 1387/2001. The writ petition CWJC No. 2045/2001 has been preferred by petitioner Irshad Ahmad to set aside the order of cancellation of the result passed by the Bihar Secondary School Examination, 2000, so far as this relates to petitioner. There being a common question of law involved, cause was heard together and are being disposed of by this common order. 2. The writ petitioners, who are respondents in review applications as also the writ petitioner Irshad Ahmad, they appeared in Secondary School (Annual) Examination, 2000 conducted by the Board and held in the month of March, 2000. The petitioner Irshad Ahmad of CWJC No. 2045/2001 appeared in the said Secondary School (Annual) Examination, 2000 along with all the aforesaid writ petitioners, including respondents of review applications, through a School known as Varsini High School. Sinni. Singhbhum West as private students. Their result having not published CWJC No. 1132/2001 was preferred by Anshuman Das and others. CWJC No. 1301/2001 was preferred by Saman Fatmi and others, CWJC No. 1387/2001 was preferred by Abhinav Raj and others and CWJC No 2045/2001 was preferred by Irshad Ahmad./ 3. The first three writ petitioners; CWJC No. 1132/2001 1301/2001 and 1387/2001 was disposed of on 23rd March, 2001, 4th April, 2001 and 16th April. 2001 respectively with direction to the respondents to issue mark-sheets in favour of petitioners within a stipulated period. 4. The aforesaid orders were passed by this Court without notice and hearing the Board and in these circumstances. Civil Review No. 36/2001. 37/2001 and 43/2001 have been preferred by the Board for review/recall of all the aforesaid orders and to dismiss all the there writ petitions. 5. In CWJC No. 2045/2001 the petitioner Irshad Ahmad challenged the cancellation of result of Examination 2000 as he also appeared as private student from the same School, the writ petition was heard along with the other review applications. 6. 5. In CWJC No. 2045/2001 the petitioner Irshad Ahmad challenged the cancellation of result of Examination 2000 as he also appeared as private student from the same School, the writ petition was heard along with the other review applications. 6. At this stage it may be mentioned that after Secondary School (Annual) Examination, 2000 it came to the notice of the Board that a number of students appeared in the examination as private candidate from different Schools though they have not deposited any residential certificate and/or pass the preliminary test/sent up test. In the aforesaid background, either results were not published or result of such private candidates were cancelled. 7. One Md. Syed All Mohammad moved before Patna High Court in CWJC No. 7629/2000 against cancellation of result of Secondary School (Annual) Examination, 2000. It was heard along with two other cases and was disposed of by a judgment and order dated 21st August. 2000 vide annexure-3. [n the aforesaid cases the Court taking into consideration the case that none of the candidates were asked to submit residential certificates held that the respondents cannot cancel their examination, result having already declared. In the light of the aforesaid decision, similar other cases including Muitazinal Haque. CWJC No. 9050/2000 and analogous cases, were also disposed of with similar observation by order dated 23th September, 2000 etc. 8. The Board field a counter affidavit in CWJC No. 2045/2001 opposing the prayer of petitioner Irshad Ahmad. Same stand has been taken for review/recall the orders passed in CWJC No. 1132/2001. 1301/2001 and 1387/2001. The main plea taken by the Board that none of the private students. Including the petitioners, appeared or passed in preliminary test/sent up test, which was a mandatory to appear in the final examination. 9. The respondents also brought td the notice of the Court that the writ petitioner Abhinav Raj of CWJC No. 1387/2001 for same relief, moved before Patna High Court in CWJC No. 13733 of 2000. In the-said case the Patna High Court vide judgment and order dated 17th January. 2001 dismissed by writ petition with the following observation : "The facts of the case i AIR 1976 Supreme Court 376 were different. In that case, on the ground that the examination form was defective the result of the candidate was withheld. In the-said case the Patna High Court vide judgment and order dated 17th January. 2001 dismissed by writ petition with the following observation : "The facts of the case i AIR 1976 Supreme Court 376 were different. In that case, on the ground that the examination form was defective the result of the candidate was withheld. The Court held that rightly or wrongly, if the candidate was allowed to appear the result should not be withheld. The present case stands on a different footing inasmuch as passing the preliminary test examination for the private candidate is a statutory requirement, non-compliance of which goes to the root of the matter. The defect in application is something which may be condoned and if the candidate is allowed to appear the result may not be withheld. It may observe that special provision with respect to private candidates has been made to ensure that the candidates are bona fide and genuine. This Court has come across several cases in which fake students were allowed to appear at the examination by the concerned authorities in collusion with each other. Compassion in such cases would not only result in violation of statutory provisions but may also give impetus to scrupulous candidates. In this view of matter, I am unable to issue direction to issue mark-sheet to the petitioner, as prayed for. The petition stands dismissed." 10. Counsel for the writ petitioners, i.e., petitioner of CWJC No. 2045/2001 and respondents in Civil Review Nos. 36/2001, 37/2001 and 43/2001 challenged the stand, as was taken by the Board. It was submitted that they appeared in the preliminary test/sent up test and having passed such examination were allowed to appear in the Annual Examination, 2000. This Court vide order dated 3rd July, 2001 in CWJC No. 2045/2001 directed the Bihar Secondary School Examination Board to file additional affidavit enclosing the copy of letter by which any individual/committee was entrusted to make enquiry from this School, and was also asked to enclose the copy of the letter, if any, by which the School authorities were informed of such an enquiry. 11. An additional affidavit has been field on behalf of respondent No. 3 enclosing copies of different letters in support of enquiry. 12. From letter No. 78 dated 10th January. 11. An additional affidavit has been field on behalf of respondent No. 3 enclosing copies of different letters in support of enquiry. 12. From letter No. 78 dated 10th January. 2000 it appears that the Board requested the District Education Officer, West Singhbhum, Chaibasa to make enquiry on the record of students who appeared as private candidates from different Schools. After necessary enquiry the District Education officer, west Singhbhum, Chaibasa informed the list of 18 such Schools, from where candidates were illegally shown to have appeared as private candidates, including the varsini High School, Sinni, Singhbhum West from where the writ petitioners appeared. Further in appears from the letter No 181 dated 10th June, 2000 that the District Education Officer, West Singhbhum, Chaibasa was requested by the Board to direct the Headmasters of such Schools to appear on a date and to produce the relevant documents including residential certificates, answer book of preliminary test/sent up test, tabulation chart etc. The list contain of the name of varsini High School, Sinni apart from 19 other Schools. 13. It further appears that the Headmaster, Varsini High School, Sinni was also asked to produce all the relevant records to find out as to whether a preliminary test/sent up test was conducted in respect to the private students or not. The then Headmaster, Varsini High School, Sinni vide his letter dated 14th July, 2000 informed the Board that he had retired on 31st May, 2000 and that most of the documents have been destroyed because of the natural devastation but stated that he can appear to produce some of the answer books. 14. Admittedly, no answer book of preliminary test/sent up test of any of the candidate, who appeared as private candidate from the Varsini High School, Sinni was produced before the authorities. The Headmaster. Varsini High School, Sinni was asked to appear, who appeared on 3rd July, 2000 before this Court and stated that he joined the School on June, 2000 and the preliminary test/sent up test having conducted prior to his joining and as such, he has no knowledge. The answer sheets are not available with the School having destroyed. A Xerox copy of tabulation chart was produced but it appears that attested signature of Headmaster is of December, 2000 and DSE signed in January. 2001. The answer sheets are not available with the School having destroyed. A Xerox copy of tabulation chart was produced but it appears that attested signature of Headmaster is of December, 2000 and DSE signed in January. 2001. It is not clear from the said photostat copy as to whether the same is the true copy of any tabulation chart or not. 15. The petitioner Irshad Ahmad of CWJC No. 2045/2001. though enclosed copies of certain mark-sheets of preliminary test/sent up test purported to have been held in November 1999 as contained in annexure-10 series but no reliance can be placed on them having issued on 29th December, 2000 and bears note that the mark-sheets were neither verified nor counter singed by the District Education officer or any other competent authority of Education Department. 16. From the stand taken by the respondents if appears that there is a disputed question of fact as to whether the petitioner or nay other private students appeared in the preliminary test/sent up test or not and, in fact, there is a doubt as to whether any such preliminary test/sent up test was ever conducted or not for private students, who appeared from Varsini High School, Sinni. 17. This apart, specific finding having already given by the Patna High Court in respect of the same School in t he case of petitioner Abhinav Raj in CWJC No. 13733/ 2000 by Judgment dated 17th January, 2001 in absence of any other material it Is not desirable to give any contrary finding. 18. The writ petitioners having failed to make out. any case in their favour and there being nothing on record to suggest that they passed the preliminary test/ sent up test, they are not entitled for declaration of result not the cancellation of such result requires any interference. 19. The order dated 23rd March. 2001 passed of in CWJC No. 1132/2001: order dated 4th April, 2001 passed In CWJC No. 1301/2001 and order dated 16th April, 2001 passed In CWJC No. 1387/2001 having passed without giving opportunity to the Bihar School Examination Board and without taking into consideration the relevant records, as discussed above, all the three aforesaid judgment and order passed in CWJC Nos. 1131/2001, 1301/2001 and 1387/2001 are reviewed and recalled. 20. There being no merit in CWJC Nos, 1132/2001, 1301/2001, 1387/2001 and 2045/2001, as such, they are dismissed. 21. The Civil Review Nos. 1131/2001, 1301/2001 and 1387/2001 are reviewed and recalled. 20. There being no merit in CWJC Nos, 1132/2001, 1301/2001, 1387/2001 and 2045/2001, as such, they are dismissed. 21. The Civil Review Nos. 36/2001, 37/2001 and 43/2001. thereby, are allowed. Later The case were heard on 19/7/2001 and order was reserved for delivering judgment today (23.7.2001). When the case was taken up to delivery judgment, Mrs. I. Sen Choudhary. counsel for the writ petitioners produced a mark register stated to be original copy of sent up test. She states that the register should have been produced by the Government officials before the Court, of which a photo copy was produced. She further states that the original mark register has been given from the officer of D.E.O., Chalbasa to one of the guardians of the writ petitioners for handing over the same to the counsel for the State. However, It is not clear as to how officer has given such register to a guardian of student without forwarding letter to the counsel for the State. 22. On perusal of the register produced, though it appears to be the original of the photo copy which was earlier produce before this Court, I find that they will not make any, change to the order already dictated.