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2012 DIGILAW 51 (JK)

Gulzar Ahmad Shah v. State of J&K & Ors.

2012-02-15

MUZAFFAR HUSSAIN ATTAR

body2012
1. The petitioner had taken B.A 3rd year, Session Nov. 2007 Jan. 2008, examination under Roll No. 23782. The examination was conducted in the premises of Government Degree College Tral. The petitioner was declared to have passed the said examination. Subsequently, it was complained and alleged that Roll numbers and Serial numbers on the answers books, consumption register and attendance sheets of the candidates of B.A/B.Sc/ B.Com 3rd year examination Session Nov-Dec 2008 were tampered and changed during the conduct of examination at Centre No. 148 of Govt. Degree College Tral. It was brought to the notice of Principal Govt. Degree College Tral by Dy. Controller of Examinations University of Kashmir that the tampering has been done in English-A, English- B; Political Science -A, Political Science-B; Urdu-A, Urdu -B and Education-A, Education-B papers to allegedly benefit the petitioner who had taken the examination under Roll No. 23782. The Principal Govt. Degree College Tral was requested vide communication dated 31st of March 2008 to investigate the matter, fix responsibility and submit detailed report to the office within five days. It was also alleged that the petitioner did not appear before the Enquiry Committee, notwithstanding this fact that he was afforded opportunity. 2. In terms of communication dated 10th April 2008, Zonal Education Officer Tral was informed by Assistant Controller Tabulation that in view of the alleged fraud and tampering of Roll Nos. on the answer books of candidates at examination centre Govt. Degree College Tral, the B.A 3rd year result of petitioner has been amended/cancelled and he has been booked under unfair means category. The authority was informed that the matter be further investigated for fixing the responsibility of this kind of unfair means so as to enable the authority to award punishment to the guilty. 3. The petitioner being aggrieved of the aforementioned communication, challenged the same in this writ petition, and has further prayed for issuance of writ of mandamus to direct the respondents to consider the petitioner to have qualified B.A III year examination on the basis of the declaration of result dated 7th Feb. 2008. 4. On notice issued, respondents have filed reply affidavit/objections. The aforementioned allegations have been reiterated in their pleadings by the respondents. Besides cancelling the examination of the petitioner in view of the record produced by Mr. 2008. 4. On notice issued, respondents have filed reply affidavit/objections. The aforementioned allegations have been reiterated in their pleadings by the respondents. Besides cancelling the examination of the petitioner in view of the record produced by Mr. J.A. Kawoosa learned counsel for the University of Kashmir, the petitioner has been also awarded punishment of disqualification from appearing and passing any University examination for a period of five years. This decision, however, is not in challenge in the writ petition. The Xerox copy of same is taken on writ record. 5. Mr. M. Ashraf Wani learned counsel for petitioner, vehemently argued that while cancelling the result of petitioner, the respondents have failed to comply with the minimum requirement of Principles of Natural Justice, in as much as, he has not been afforded opportunity of hearing before cancelling the result of B.A. 3rd year examination. Learned counsel further submitted that the petitioner has not indulged in any type of unfair means in the examination. Learned counsel further submitted that had the respondents afforded opportunity of hearing to the petitioner, the impugned order in the writ petition would not have been passed as the petitioner would have been in a position to satisfy the respondents about his innocence. Learned counsel in support of his contention referred to and relied upon case titled Dr. Shahnaz Dar v. M.C.I and ors reported in 2010(11) S.L.J 542 and submitted that the petition be allowed. 6. Mr. J.A. Kawoosa, learned counsel for the University submitted that on receipt of complaint about petitioner's alleged involvement in the unfair means in the B.A. 3rd year examination, in order to arrive at proper conclusion Principal Govt. Degree College Tral was ordered by the University to hold an enquiry in the matter. Ld counsel submitted that the record which was produced before the Enquiry Committee conclusively proved that the petitioner has indulged in unfair means in the aforementioned examination. Learned counsel further submitted that the employer of the petitioner was requested to inform him to appear before the Enquiry committee so as to enable him to defend himself, but despite that he did not appear before the Enquiry Committee. Learned counsel further submitted that in view of the evidence collected during the enquiry which includes documentary evidence as well, the petitioner in connivance with some officials of the aforesaid examination centre has reaped the benefits by indulging in fraudulent acts. Learned counsel further submitted that in view of the evidence collected during the enquiry which includes documentary evidence as well, the petitioner in connivance with some officials of the aforesaid examination centre has reaped the benefits by indulging in fraudulent acts. Learned counsel, accordingly, prayed for dismissal of writ petition. Learned counsel further submitted that the order of punishment of debarring the petitioner from passing any examination for five years has not been called in question in this writ petition and submitted that the writ petition on this count also deserves to be dismissed. Learned counsel submitted that the notification in compliance of the decision taken by the University has also been issued. 7. Mr. S.A. Naik learned AAG submitted that role of the authorities of Education Department was limited to the extent of only informing the petitioner that he is required to appear before the Enquiry committee and that the petitioner was informed by the authorities to appear before the Enquiry Committee. 8. The entire thrust of Mr. Wani learned counsel for petitioner in this case is on non-compliance of Principle of Natural Justice. Learned counsel made reference to Dr. Shahnaz Dar's case to persuade the court to take a view that the communication impugned in this writ petition deserves to be quashed. The facts in Dr. Shahnaz Dar's case were materially different from the facts of this case. In that case the certificate of 10+2 was projected by Dr. Shahnaz which was admitted to be genuine by the authorities of Board of School Education. The competent authority had cancelled the provisional registration certificate and had refused to issue permanent registration certificate in favour of Dr. Shahnaz on the ground that the said relief was sought on the basis of 10+2 certificate which as per the report of Board of School Education was not genuine. Since the certificate produced by Dr. Shahnaz along with the writ record was admitted to genuine and correct by the Board Authorities, it was in that backdrop the impugned orders were quashed on the ground that at no point of time the said Doctor was granted opportunity of hearing. Since the certificate produced by Dr. Shahnaz along with the writ record was admitted to genuine and correct by the Board Authorities, it was in that backdrop the impugned orders were quashed on the ground that at no point of time the said Doctor was granted opportunity of hearing. The facts in this case are different in as much as the allegations made against the petitioner were that in connivance with some officers of Education Department the roll numbers and answer scripts were allegedly changed/forged and as per stand taken by the respondents the petitioner was informed to appear before the Enquiry Committee to defend himself. The petitioner failed to appear before the Committee to defend himself. The argument of learned counsel and reliance placed on the aforementioned judgment of the court, thus, pales into in-significance and loses all its bite. In Dr. Shahnaz's case, petitioner was at no point of time afforded opportunity of hearing. 9. However, in the peculiar facts and circumstances of this case, the court deems it appropriate in order to settle the issue to direct the respondents to afford post decisional hearing to the petitioner. This petition is accordingly disposed of in the following manner: The respondents No. 2 and 3 are directed to afford post decisional hearing to the petitioner. The petitioner to appear before respondents 2 and 3 at 11 a.m on 23rd of Feb, 2012. The said respondents are directed to consider all the material/documents which petitioner would produce before them and afford him opportunity of hearing. The said respondents are further directed to accord consideration to the material/evidence/oral submissions as may be produced made by the petitioner and take decision which may include modification/ cancellation/rescinding of orders passed against the petitioner, and if not satisfied with the explanation of the petitioner, the respondents are at liberty to maintain orders passed by them. In order to allow adequate opportunity to petitioner to project his case before respondents 2 & 3, if some time is sought by him the said authority shall accordingly grant him requisite time. In the event, the petitioner does not appear before respondents 2 and 3, on the aforementioned date without any just and lawful cause this petition shall be deemed to have been dismissed. 10. The post decisional enquiry be initiated and completed preferably within a period of two weeks.