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2014 DIGILAW 1492 (MP)

Ajay Kumar v. State of M. P.

2014-11-19

A.M.KHANWILKAR, VANDANA KASREKAR

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ORDER 1. Heard counsel for the parties. 2. By this petition under Article 226 of the Constitution of India, the petitioners have sought relief to direct the respondents to declare them as having passed in the year 2010 and to issue mark-sheets to the petitioners by showing them as passed in the course i.e. Diploma in Education in 2010. 3. This relief is founded on the assertion that the petitioners had appeared in the concerned examination in Part -I in the year 2008 and thereafter in Part-II in the year 2009. They were wrongly shown as absent during the said examination and which has been made the basis to deny the relief to the petitioners. The petitioners, however, made this grievance to the respondent No.2 for the first time in June, 2013, and thereafter again in December, 2013. After filing of the representation in June, 2013, the petitioners rushed to this Court and filed the present writ petition on 26th June, 2013. The petitioners have relied on the Rules of 2010 in support of the relief claimed by them. 4. The respondents by filing reply-affidavit have specifically denied the fact that the petitioners had appeared in the concerned examination. According to respondent No.2, who had conducted the examination in question, the petitioners were marked as absent as they did not appear in Theory Papers and some of the petitioners in Practical Papers. Further, the petitioners had appeared in the examination conducted prior to coming into force of Rules of 2010 and, therefore, were not entitled to base their argument on the basis of those Rules, which have no application to the fact situation of the present case. More importantly, according to the respondents, this Court ought to decline to entertain this petition, which has been filed after expiry of three years from the date when the cause of action first arose. In other words, the petition suffers from laches and unexplained delay. 5. Having considered the rival submissions, we find merits in the argument of the respondents that the petition should be thrown out at the threshold having been filed belatedly after lapse of almost three years. In that, the petitioners had appeared in the examination conducted in the year 2008 and 2009. The petitioners thereafter appeared in the examination in the year 2010. In that, the petitioners had appeared in the examination conducted in the year 2008 and 2009. The petitioners thereafter appeared in the examination in the year 2010. During all these examinations, the Rules of 2007-08 were in vogue and the Rules of 2010 came into force after completion of the examination, hence the said Rules of 2010 have no application to the fact situation of the present case. 6. Suffice it to observe that the petitioners made representation to the respondent No.2 after gap of almost three years, firstly, in June, 2013, and then in December, 2013. No reason is forthcoming as to what prevented the petitioners to make such representation to the respondent No.2 contemporaneously after the results of the concerned examinations were announced. In absence of any explanation in this behalf, it would necessarily follow that there is unexplained delay and that too of almost three years and thus warranting dismissal of the petition on the ground of laches. 7. In any case, the petitioners cannot rest their submission on the basis of the Rules of 2010, which came into force after the concerned examinations were already over. It is well established position that the Rules ordinarily cannot have retrospective effect, as a result reliance on the provisions of the Rules of 2010 will be of no avail. 8. There is another strong reason why we must decline to entertain this petition. According to the petitioners, they had appeared in the examinations conducted in the year 2008 as well as 2009 whereas, according to the respondents, some of the petitioners failed to appear in Theory Papers and some of them in Practical Papers. The official record reinforces that factual position. If it is so, there is presumption in law that the official record has been maintained in ordinary course of business. Indeed, this presumption is rebuttable, but, the petitioners have not bothered to file rejoinder affidavit to deal with the factual position so asserted by the respondents. In that sense, the factual position asserted by the petitioners is a disputed question of fact and cannot be resolved in exercise of writ jurisdiction. 9. Taking any view of the matter, therefore, no interference is warranted. Dismissed.