Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 567 (ORI)

Nityananda Dey v. State of Odisha

2014-09-04

AMITAVA ROY, B.R.SARANGI

body2014
JUDGMENT Dr. B.R. SARANGI, J. - The writ petitioner in W.P.(C) No.1211 of 2012 being the appellant filed this application challenging the order dated 27.07.2012 passed by the learned Single Judge dismissing the writ petition and upholding the instructions issued by the Board of Secondary Education, Odisha to the Head of Institutions of the Madhyama Examination, 2012. 2.The predent facts, in nut-shell, are that Board of Secondary Education Odisha, Cuttack declared the Madhyama Examination as equivalent to High School Certificate Examination conducted by the Board of Secondary Education, Odisha from the academic session 1983-84 onwards by notification dated 05.07.1984. The Govt. of Odisha in Education Department, vide notification dated 31.01.1992, declared equivalence of various categories of Sanskrit Institutions imparting education in Prathama, Madhyama, Upa-Sastri and Sastri. Accordingly, the institutions imparting education upto Madhyama level were declared equivalent with Secondary Schools (High Schools). 3.Sri Jagannath Sanskrit Viswa Vidyalaya, Puri was conducting the examination for Madhyama courses offered by different Sanskrit institutions in the State till the academic session 2000-01. On the basis of decision taken by the Board of Secondary Education Odisha in exercise of power under Section 33 of the Secondary Education Act, 1983, it was directed to conduct the Prathama and Madhyama examinations from the academic session 2000-01 onwards pursuant to letter dated 13.02.2001. By virtue of the said letter, Board of Secondary Education Odisha has only been granted power to conduct examination of Madhyama courses whereas the administrative control and supervision of the Sanskrit institutions continues to be vested with government, more particularly with the Superintendent, Sanskrit Studies so also Director, Secondary Education, Odisha, Cuttack. In exercise of power under Section 21(h) of the Secondary Education Act, Board of Secondary Education Odisha framed regulations for conduct of Prathama and Madhyama Examinations imparted by different Sanskrit Institutions of the State w.e.f. 2003 which were duly approved by Govt. of Odisha on 30.01.2002 as per the provision contained in Section 21 (iii) which are called “Regulations of Prathama and Madhyama Examinations 2003 and onwards” (hereinafter referred to as “The 2003 Regulations”). 4.Debendranath Sanskrit Vidyapitha was established with the permission of Govt. of Odisha communicated through Director, Secondary Education, vide letter No.34007 dated 26.7.2006, w.e.f. 2006-07. It was granted temporary recognition from 2007-08, vide letter dated 9.7.2008, and it continued for four academic sessions. 4.Debendranath Sanskrit Vidyapitha was established with the permission of Govt. of Odisha communicated through Director, Secondary Education, vide letter No.34007 dated 26.7.2006, w.e.f. 2006-07. It was granted temporary recognition from 2007-08, vide letter dated 9.7.2008, and it continued for four academic sessions. Thereafter permanent recognition was granted w.e.f. academic sessions 2009-10 retrospectively by the High Power Committee in its meeting held on 15.11.2011. Being a recognized Sanskrit institution, the provision of the Board of Secondary Education Odisha as well as the rules and regulations issued by the authorities are binding on the appellant-petitioner. Regulation-6 of 2003 Regulations categorized the candidates of four categories, who will appear in the Madhyama Certificate Examination, namely, (i) Regular Candidates, (ii) Ex-Regular candidates, (iii) Quasi-Regular Candidates and (iv) Private candidates. As per Regulation-11, candidates other than regular and ex-regular candidates shall be required to submit along with their application forms either the Transfer Certificate/the School Leaving Certificate/Vidyalaya or Mahavidyalaya Leaving Certificate in original issued by the Vidyalaya/Mahavidyalaya/School last attended by them. 5.It is stated that when such rule was under operation, the Secretary, Board of Secondary Education Odisha issued instruction to Head of the Institutions for Madhyama Certificate Examination, 2012 to furnish the cancelled Transfer Certificate of the examinees to the respective tolls while submitting the application form for appearing in the said examination under Clause-14 (a) of the writ petition, which was assailed in the writ petition and after due adjudication the learned Single Judge dismissed the writ petition that the Head of the Institution was no way affected by such instruction and so far as the students of the institutions who had appeared in the annual Madhyama Examination, 2012 were concerned, pursuant to the direction of this Court, in case they would produce the documents before the Board authorities for verification, their results would be published forthwith after due verification of the same, if they would be found to be regular students. Against the said order, the writ appeal has been filed. 6.Mr. Ranjan Kumar Rout, learned counsel for the appellant assails the order passed by the learned Single Judge that fixation of such condition is arbitrary, unreasonable and contrary to the statute governing the field. Against the said order, the writ appeal has been filed. 6.Mr. Ranjan Kumar Rout, learned counsel for the appellant assails the order passed by the learned Single Judge that fixation of such condition is arbitrary, unreasonable and contrary to the statute governing the field. It is urged that while admitting the students in H.S.C. Examination and Madhyama Examination both being one and the same, the Secretary, Board of Secondary Education Odisha while issuing the instruction for Madhyama Examination, 2012 made hostile discrimination vis-a-vis the candidates appearing in High School Certificate Examination, 2012 and also raised a question of competency of the Secretary to issue such instruction and states that it was for the Examination Committee or the Education Committee or the designated committee authorized to issue such instruction. It is further urged that for any Madhyamaya Examination, 2012 instruction had been issued to the Head of the Institutions indicating in clause-14 (a) to furnish the copy of the cancelled transfer certificates on the basis of which the students have taken admission in their respective tolls which has been inserted in the instruction because the Board experienced that fake students were taking admission in connivance with the Board authorities but no decision had been taken by the Board at any point of time or the examination committee of the Board. Therefore, in absence of any decision, issuance of such direction was a nullity. It is further urged that while issuing such instruction no permission was accorded by the Government under Section 33 of 1953 Act. Therefore, the instruction so issued being vitiated calls for interference by this Court. 7.Mr. Jagannath Pattnaik, learned Senior Counsel appearing for respondents No.3 and 4, has categorically urged that as per the provisions contained in Orissa Secondary Education Act, 1953 (hereinafter referred to as the 1953 Act) and Regulations framed thereunder, the Secretary of Board of Secondary Education Odisha is competent to issue instruction on behalf of the Board in connection with conduct of Madhyama Examination. The 1953 Act empowered the Government to constitute the Board for regulating, controlling and developing secondary education in the State thereby authorizing the Board to examine those who have completed the prescribed course of study and to award certificates to successful candidates and to do all other things incidental thereto. The 1953 Act empowered the Government to constitute the Board for regulating, controlling and developing secondary education in the State thereby authorizing the Board to examine those who have completed the prescribed course of study and to award certificates to successful candidates and to do all other things incidental thereto. The Board which was constituted under Act, discharges its duties and responsibilities through various Committees as laid down under Section 19 of the Act and Examination Committee is one of such. Section-II of the Regulations for Madhyama Certificate Examination, 2003 and onwards contains provision for the Examination Committee under Regulation-6 to issue instructions for smooth conduct of Madhyama Examination from time to time. It is further stated that the said instructions were issued to check entry of fake candidates into the examination and the instructions issued by the Secretary with the approval of the Examination Committee are intra vires the statute. Therefore, while adjudicating the matter the learned Single Judge has not committed any error so that this Court should interfere with the same. It is further stated that since the conduct of examination is a part of the competence of the Board, the instruction so issued by its Secretary cannot be said to be vitiated in law. 8.Mr. Sandeep Parida, learned Standing Counsel for School and Mass Education Department urged that the action taken by the Board to prevent fake students to appear in the Madhyama Examination, 2012 by issuing necessary instructions to the Head of Institutions was well within its jurisdiction inasmuch as for a fair examination such instructions were issued. Therefore, there was no illegality and irregularity so that this Court may interfere with the order passed by the learned Single Judge. 9.After hearing learned counsel for the parties, on perusing the records and after considering the materials available, it appears that the Board of Secondary Education Odisha has been constituted under the provision of 1953 Act to regulate, control and develop Secondary Education in the State of Odisha. For the purpose of High School Certificate Examination, Prathama and Madhyama Examinations, Board has framed regulations namely, “New Regulations for the High School Certificate Examination-1981 & onwards under chapter-X of Board Regulations” and “Regulation of Prathama & Madhyama Examination-2003 and onwards” respectively to conduct High School Certificate Examination, Prathama and Madhyama Examinations. For the purpose of High School Certificate Examination, Prathama and Madhyama Examinations, Board has framed regulations namely, “New Regulations for the High School Certificate Examination-1981 & onwards under chapter-X of Board Regulations” and “Regulation of Prathama & Madhyama Examination-2003 and onwards” respectively to conduct High School Certificate Examination, Prathama and Madhyama Examinations. Besides the above, each year for the above examination, Board issued instructions to the concerned authorities those who are associated for the smooth conduct of the above examinations. Accordingly, instructions were also issued to the Heads of the institutions for the High School Certificate and Madhyama Examination, 2012. So far as he Madhyam Examination, 2012 was concerned, instructions were issued under Clause-14 (a) to the Heads of the institutions directing that the cancelled transfer certificates of the candidates who had appeared in Madhyama Examination, 2012 under the regulation had to be furnished along with application form for appearing in such examination. As per Regulation-20 of the Board’s Regulation, the examination committee deals with the examination matters while the Secretary of the Board is the Secretary of the Committee as per Regulation-21 and the committee has also power under Regulation-20 (v) to lay down instructions to be issued to the candidates, Superintendents of the examination centres, examiners and others and the President and other members of the committee. Under the regulations of the Board, the President is the executive authority of the Board as per Regulation-6 of chapter-IV and has power to take immediate action and report his action to the Board at its next meeting. Under chapter-VI, Regulation-20 the Secretary is responsible to carry out the decision of the Board and under Regulation-1 of the said chapter, the Secretary shall subject to the control of the President, be the head of the office of the Board. Under Regulation-8, the Secretary is bound to render assistance to the President as may be desired by him in the performance of his duties and under Regulation-13, he/she shall conduct the official correspondence. Therefore, the instruction issued for Madhyama Examination, 2012 under clause-14 (a) by the Secretary as per the direction of the President which was ratified by the Examination Committee in its meeting held on 19.6.2012. As per the Board Regulation for Madhyama Examination, a candidate is only competent to appear in the Madhyama Examination, if he/she has passed the Prathama Examination. Therefore, the instruction issued for Madhyama Examination, 2012 under clause-14 (a) by the Secretary as per the direction of the President which was ratified by the Examination Committee in its meeting held on 19.6.2012. As per the Board Regulation for Madhyama Examination, a candidate is only competent to appear in the Madhyama Examination, if he/she has passed the Prathama Examination. The Board is compelled to issue instruction to Madhyama students to submit copies of the cancelled transfer certificate at the time of the filling up forms for Madhyama Examination as many of them appearing the examination without prosecuting the regular course of study. Therefore appearance of a candidate in any examination is subject to the eligibility of the candidate for such examination. To prevent fake students from appearing in the examination, the Board has put a screening mechanism to check the antecedents of the candidates appearing in the Madhyama Examination so as to verify their eligibility for the examination. 10.It is argued with vehemenence that while issuing such instructions, approval from the State under Section 33 of the 1953 Act was not taken and therefore such instructions were vitiated. On perusal of Annexure-2, the letter of the Department of School and Mass Education Department bearing No. VIII-SE-(H)-19/2001-4250/SME, Dt. 13.02.2001, it appears that the Govt. of Odisha decided Prathama and Madhyama Examinations to be conducted by Board of Secondary Education Odisha, Cuttack from the academic session 2000-01. Therefore in exercise of powers vested under Section 33 of the Secondary Act 1953 (Orissa Act-X of 1953), the Government was pleased to direct the Board of Education Orissa, Cuttack to conduct the Prathama and Madhyama Examinations from the year 2000-2002 onwards and for that the Board of Secondary Education would take all possible steps including amendment of Board's Regulations. Thus for conducting Prathama and Madhyama Examinartions from 2000-2001 onwards, the State Government authorised the Board of Secondary Education Odisha to take all possible steps which included issuance of instruction by the Board of Secondary Education Odisha. The instructions issued for conduct of Madhyama Examination, 2012 were therefore well within the competence of the the authority as the Government had permitted the Board of Secondary Education Odisha to conduct such examination in exercise of power vested under Section 33 of the Secondary Act 1953. The instructions issued for conduct of Madhyama Examination, 2012 were therefore well within the competence of the the authority as the Government had permitted the Board of Secondary Education Odisha to conduct such examination in exercise of power vested under Section 33 of the Secondary Act 1953. Clause-14 (a) of the instructions contained one of the possible steps that was required to conduct free and fair examinations and therefore no illegality and irregllarity was committed by the Board of Secondary Education Odisha by issuing such instruction so that this Court can interfere with the same. 11.As per 2003 Regulation, the candidates are categorized as regular candidates, ex-regular candidates, quasi-regular candidates and private candidates. So far as regular candidates are concerned, they are to be admitted into class-VIII, IX & X, provided they have passed class-VII and have got transfer certificate from the previous institution. Therefore when admitted into class-IX, their transfer certificates had to be cancelled in order to maintain transparency in the system. The regulations prescribe that the candidates, who have passed Prathama Examination may appear in Madhyama Examination after lapse of four years, if they have not attended any recognized institution for at least 365 days prior to the date of commencement of the Prathama Certificate Examination. In case a candidate, who has not taken admission in any recognized institution where Sanskrit courses are available, such candidate shall not be allowed to appear in the Madhyama Examination. 12.In view of the aforesaid facts and circumstances and the law discussed, this Court finds no illegality or irregularity in the impugned judgment. Accordingly, the Writ Appeal fails and the same is dismissed. No order as to costs. AMITAVA ROY, C.J.I agree. Writ Appeal dismissed.