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2011 DIGILAW 362 (JK)

Samiullah Dar v. State Of J&K

2011-07-25

MUZAFFAR HUSSAIN ATTAR

body2011
1. Learned counsel for the petitioner submitted that respondent no. 1 and 5 being not necessary parties be deleted from the array of respondents. His statement is taken on record. 2. Respondent no. 1 and 5 are ordered to be deleted from the array of respondents. Registry to update the cause title of the writ petition. 3. Petitioner had failed to clear one paper of 10th Class examination, but was granted admission in higher secondary Part I. Petitioner appeared in 11th class examination, but, without clearing the backlog paper in as much as he had second time failed to pass it. petitioner was permitted to take the 12th Class examination, however, without clearing the backlog paper as a regular candidate. It is for this reason, respondent-Board vide NOT.No.707/HSE-II/A/R/10 dated 28th March 2011 quashed the result of the petitioner. This order which is called in question in this petition. 4. On notice issued, respondent no. 2 and 3 have filed reply affidavit. The said respondents in their reply affidavit under the caption `factual background' have stated as under:- "It is submitted that the Principal of the Concerned School (Govt. Boys Higher Secondary School Pulwama) had submitted the enrolment of the regular candidates of Higher Secondary Part-II (12th class) Annual Session 2010 in a phased manner to the officer of Assistant Secretary of J&K State Board of School Education, Sub-office Pulwama. Particulars of the candidates were submitted by the concerned principal without their marks certificates and achievement cards of 11th class. It is further submitted that the Principal concerned is supposed to check the candidature of the candidates and check their eligibility to appear in the examination which was not done in the present case and the Principal concerned without checking the candidature of the petitioner properly forwarded it to Assistant Secretary concerned along with the candidature of eligible bonafide impression that the concerned Principal had after proper verification forwarded the candidature of the candidates therefore Roll Nos. were allotted to the candidates and they were permitted to appear in the examination. It was so done in order to avoid delay and also to avoid any hardship to the genuine and eligible students/candidates. Subsequently when the relevant documents were received from the Principal/concerned School it was found that 2 candidates bearing Roll Nos. 754282 (petitioner) and 757287 were ineligible to sit in the 12th class examination. It was so done in order to avoid delay and also to avoid any hardship to the genuine and eligible students/candidates. Subsequently when the relevant documents were received from the Principal/concerned School it was found that 2 candidates bearing Roll Nos. 754282 (petitioner) and 757287 were ineligible to sit in the 12th class examination. These candidates had passed Secondary School Examination (Class 10th) Bi-Annual examination (Session 2010) and in the same year appeared in 12th Class examination. The concerned Principal was vide various communications asked to submit his explanation as he had acted negligently and consequently the petitioner was allowed to appear in the examination. The result of the petitioner was withheld (under category disputed eligibility) till final decision in the matter. The matter was considered by the concerned authority/replying respondents and examination of the petitioner and aforementioned other candidates was cancelled vide order dated 28.03.2011, copy of the same is annexed herewith as Annexure-P1. The said decision was taken after the petitioner and the other effected candidates were summoned to the board offices for explaining their position but they failed to do the needful as they had no right (Annexure P2)." 5. Heard learned counsel for the parties. Considered the matter. 6. Learned counsel for the parties argued in tune with their respective pleadings. Learned counsel for the petitioner in support of his contention referred to the judgment of the Hon'ble Supreme Court in case title Shri Krishna v. Kurukshetra University AIR 1976 SC 376 and two judgments of this Court reported in 2004(II) SLJ 523 and AIR 2002 J&K 39 . 7. Learned counsel further submitted that the facts of this case are squarely covered by above referred judgment and prayed for allowing the writ petition. 8. Learned Mr. H.I. Hussain, Sr. Counsel appeared for the respondent-Board and submitted that because of the huge rush of students, it is literally not practicable to scrutinize each and individual form before conducting of examination. Learned counsel further submitted that in case such an exercise is undertaken, then the conducting of examination will get delayed which will otherwise affect the academic career of the students who are always in huge number. Learned counsel submitted that for this bonafide reason the respondent-Board trusts the school authorities who forward the application form of the students. 9. Learned counsel further submitted that in case such an exercise is undertaken, then the conducting of examination will get delayed which will otherwise affect the academic career of the students who are always in huge number. Learned counsel submitted that for this bonafide reason the respondent-Board trusts the school authorities who forward the application form of the students. 9. Be that as it may, the Hon'ble Supreme Court in Shri Krishan v. Kurukshetra University case at para 6 and 7 has ruled as under:- "Once the candidate is allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the candidate cannot be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear. (para 6) Before issuing the admission card to a student to appear at Part I Law Examination in April 1972 it was the duty of the University authorities to scrutinize the admission forms filled by the student in rder to find out whether it was in order. Equally it was the duty of the head of the Department of Law before submitting the form to the University to see that the form complied with all the requirements. If neither the Head of the Department nor the University authorities took care to scrutinize the admission form, then in not disclosing the shortage of percentage in attendance the question of the candidate committing a fraud did not arise. Similarly, when the candidate was allowed to appear at the Part II Law Examination in May 1973, the University authorities had no jurisdiction to cancel his candidature for that examination. If the University authorities acquiesced in the infirmities which the admission form contained and allowed the candidate to appear in the Examination, then by force of the University Statute the University had no power to withdraw the candidate of the candidate. AIR 1976 Madh Pra 194, C.W. No. 1039 of 1974, D/- 2/4/1974 (Punj & Har), Reversed." (para 7) 10. It is not the case of the respondent-Board that the petitioner has been permitted to take examination by practicing fraud on the respondents. It is a case of pure mistake committed by the School authorities who forwarded application form of the petitioner to the concerned-Board authorities. 11. It is not the case of the respondent-Board that the petitioner has been permitted to take examination by practicing fraud on the respondents. It is a case of pure mistake committed by the School authorities who forwarded application form of the petitioner to the concerned-Board authorities. 11. In view of the law laid down by the Hon'ble Supreme Court, this petition deserves to be allowed. 12. For the above stated reasons, this petition is disposed of in the following manner:- 1. By issuance of writ of certiorari, the impugned order bearing no. NOT.No. 707/HSE-II/A/R/10 dated 28/03/2011 is quashed. 2. By issuance of writ of mandamus respondents are to issue the necessary certificates in favour of the petitioner within three weeks from the date copy of this order is served on them. 13. This petition is, accordingly, disposed of alongwith connected CMP(s), if any.