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2016 DIGILAW 1029 (ORI)

Falguni Sahoo v. State of Odisha

2016-11-03

D.DASH

body2016
JUDGMENT : The petitioner being a student of Gandha Mardhan High School, Kumundi in the district of Keonjhar had appeared the Annual HSC Examination of the year 2012 in the centre at Govt. Boys High School, Suakati in the said District of Keonjhar being provided with Enrolment-cum-Admit Card assigned with roll number CCG013024 as per Annexure-1. However, the result was withheld. After necessary enquiry, the petitioner could ascertain that though he has done well in the examination in all the papers including that of Science Paper-II and secured more than the pass mark, yet the examining authorities on the basis of the seizure of a piece of written paper containing some writing in relation to the Science Paper-I said to have been in possession of the petitioner when he was appearing in Science Paper-II examination followed by the report of the Examination Squad had withheld the result on the ground of adoption of mal practice and finally the opposite party no. 2, the Controller of Examination of Secondary, Orissa, Cuttack by notification No. 2096 (M.P. Section) dated 18.7.2012 had cancelled the result of A.H.S.C. Examination, 2012 in so far as the petitioner is concerned on the ground of adoption of mal practice, while giving him the permission to appear in the supplementary examination of the year 2012 and onwards. This is now called in question and is the subject matter of this writ application filed by the petitioner who was then minor through his uncle as his next friend. 2. It is stated that on receipt of all the answer books including seized answer book of Science Paper-II as well as statement of the visiting squad to the examination centre as on that day by making an application under the Right to Information Act, the petitioner could ascertain that he had passed in all the papers including Science Paper-II and the so-called paper slip seized from the possession of the petitioner had no reference to the Science Paper-II in which he was appearing at the relevant time of visit of the members of the squad. Therefore, it is his contention that said seizure of paper slip ought not to have been taken as the basis to say that this petitioner was involved in mal practice during the examination and accordingly his result ought not to have been withheld and finally cancelled. Therefore, it is his contention that said seizure of paper slip ought not to have been taken as the basis to say that this petitioner was involved in mal practice during the examination and accordingly his result ought not to have been withheld and finally cancelled. It is stated that no such material had been seized from his possession even having even any remote nexus or relevance with Science Paper-II. Therefore, in this writ application, the petitioner seeks issuance of a writ of mandamus in quashing the order of cancellation of his result in Annual HSC Examination 2012 and directing the declaration of his result therein. 3. In the counter affidavit, the opp.party no. 2 asserts said withholding and cancellation of result of the petitioner in Annual HSC Examination 2012 as justified and for valid reasons observing all formalities as mandated. It is stated that incriminating materials being seized from the possession of the petitioner kept hidden and after search on account of suspicion during the period of examination at the centre by the members of the visiting squad, it clearly offends the rules for guidance of the candidates as provided in clause (B) on the reverse of the Admit Card at Annexure-B/3. In course of hearing, it has also been placed from the side of the opp.party no. 2 that during the pendency of the writ application, the petitioner had appeared in Annual HSC Exam 2014 as Ex-Regular candidate under Roll No. CC004023 and he has again failed therein. The petitioner by filing an affidavit does not dispute the said fact. 4. Mr. K.K.Swain, learned counsel for the petitioner contends that here even assuming for a moment without entering into the factual controversy on the factum of seizure etc., the material said to have been seized from the possession of the petitioner is not relevant to the subject in which the candidate was taking the examination. So it cannot be said that the petitioner had adopted any such unfair means in the examination being involved in mal practice. In support of his submission, he has placed reliance upon the Division Bench of this Court in case of Ajit Kumar Patra vs. Vice Chancellor, Sambalpur University Jyoti Vihar, Burla and others; 2002 (Supp.)OLR 658 and in case of Central Board of Secondary Education v. Ms.Vineeta Mahajan and another; AIR 1994 SC 733 . In support of his submission, he has placed reliance upon the Division Bench of this Court in case of Ajit Kumar Patra vs. Vice Chancellor, Sambalpur University Jyoti Vihar, Burla and others; 2002 (Supp.)OLR 658 and in case of Central Board of Secondary Education v. Ms.Vineeta Mahajan and another; AIR 1994 SC 733 . Addressing the point of subsequent appearance of the petitioner in Annual HSC Examination of the year 2014 as Ex-Regular candidate and the failure to get through he contends therein that in view of the long pendency of this writ application, the petitioner after having waited for two years out of disgust had taken a chance in appearing in the examination but the petitioner for that reason is not estopped from questioning the withholding and cancellation of his result of Annual HSC Examination 2012 and it thus cannot stand in the way of questioning the withholding and cancellation of the result on its own merit. When the petitioner had appeared in the examination, he should not be deprived of questioning the earlier illegal action of the authority on merit for a decision of the Court. 5. Learned counsel for the opp.party no. 2 contends that when in the rule for guidance of the candidates it has been clearly stated so under clause (B) on the reverse of the Admit Card and as during the visit of the members of the squad, the petitioner was found to be in possession of the incriminating materials, although it may not have direct nexus with the paper in which he was then appearing yet the petitioner squarely falls within the net of the said clause and cannot escape from the liability and it has to be said that he was engaged the mal practice even without any proof as regards its user. It is his contention that in this matter all legal formalities have been followed for the purpose and the examination committee has rightly taken the decision of withholding the result of the petitioner which finally ended in cancellation. It is his contention that in this matter all legal formalities have been followed for the purpose and the examination committee has rightly taken the decision of withholding the result of the petitioner which finally ended in cancellation. He further contends that when the petitioner has in the meantime already surrendered to the said decision in view of his subsequent appearance in the Annual HSC Exam of the year, 2014 and there being unsuccessful, he cannot now turn around and go to question the withholding of result followed by cancellation of the result of the Annual HSC Exam 2012 as by said conduct out of his own free will and volition, he has accepted the said decision of opp.party no. 2 without any demur. 6. In order to appreciate the rival contention, let us first of us look at the rules for guidance of the candidates as provided on the reverse of the Admit Card under Annexure-B/3. Rule-B provides as under:- “ (i) A candidate is not allowed to leave the hall before an hour after the examination starts. A candidate can be permitted by the invigilator to leave the hall temporarily after an hour on emergency ground. But before leaving the hall he/she must deposit the question and answer book with the invigilator. (ii) Candidates should not leave their seats finally until they submit answer books to the invigilator. (iii) No candidate will be allowed to re-enter the examination hall once if he/she had left the hall after finally handing over the answer book. (iv) If any candidate submits the Answer Book before the examination is over, he/she has to deposit the question paper to the invigilator. (v) Candidates are not allowed to talk to each other in the examination hall. (vi) No one should receive help from or assist any other in the examination hall in any manner. (vii) The candidate should not write any thing except his/her Roll Number on the question papers. (viii) The candidate should not tear or mutilate the answer book or the question paper. (ix) The candidate should neither possess nor use any incriminating materials in the examination hall. (x) Mobile Phones, Calculators or any other electronic devices are not allowed inside the Examination Centre. (viii) The candidate should not tear or mutilate the answer book or the question paper. (ix) The candidate should neither possess nor use any incriminating materials in the examination hall. (x) Mobile Phones, Calculators or any other electronic devices are not allowed inside the Examination Centre. (xi) Question Papers will be distributed 10 minutes before the commenced of the examination only for the purpose of reading the questions.” The specific charge against this petitioner is the violation of clause-B(ix) which says that the candidate should neither possess nor use any incriminating materials in the examination hall. On a reading of the said clause at one go, the words “possession” and “use” clearly refer to the possession or use of the incriminating materials. So now the question arises as to whether the seizure of the paper slips from the possession of the petitioner can be said to be the incriminating materials in his possession at the relevant time of checking during the examination or not. 7. In case of Central Board of Secondary Education (supra) that the Apex Court while answering a similar question has held as under:- “……..The Rule clearly defines “ the use of unfair means at the examination” and lays down in simple language that a candidate having in possession papers relevant to the examination in the papers concerned, shall be deemed to have used unfair means at the examination. The sine qua-non for the misconduct under the rule, is he recovery of the incriminating material from the possession of the candidate. Once the candidate is found to be in possession of papers relevant to the examination, the requirement of the Rule is satisfied and there is no escape from the conclusion that the candidate has used unfair means at the examination. The Rule does not make any distinction between bona fide or mala fide possession of the incriminating material. The High Courts reasoning that the candidate having not used the material-in spite of the opportunity available to her-the possession alone would not attract the provisions of the Rule, in our view, is not borne out from the plain language of the Rule…..” This decision of the Supreme Court has been followed by the High Court of Gujarat in Sardar Patel University v. Minal R.Jogi and another; AIR 2002 Gujarat 13. It has been further held in case of Central Board of Secondary Education (supra) that once the candidate is found to be in possession of “papers relevant to the examination” ,the requirement of the rule is satisfied and there was no escape from the conclusion that the candidate has used unfair means at the examination. Similarly, in Sardar Patel University v. Minal R.Jogi and another (surpa) it has been held by the High Court of Gujarat that “material which was found from the possession of the student on the ruler was pertaining to the subject for which the student was appearing at the examination. Thus, unless the material that is found in possession of the candidate is relevant to the subject in which the candidate is taking the examination, it cannot be held that the candidate had adopted to unfair means in the examination in violation of the rule. It has been said that the object of provisions of Statute 214, as held above is to punish a candidate resorting to “unfair means in the examination”. Statute 214 (5), in particular, states that if the Examination Committee comes to the conclusion that there has been “resort to unfair means”, it may recommend to the Syndicate for imposition of any of the penalties mentioned therein upon the candidate. The Committee can reach this conclusion only if the material found in possession of the candidate was relevant to the subject in which the candidate was taking the examination in the examination hall and not otherwise. In my considered view, this is the only possible construction of the rule of guidance as indicated at clause-B (ix) and so permissible for further action to flow therefrom. Furthermore, this distinction is clearly discernible if we glance at the instructions issued by the Board to the Center Superintendent in respect of penalties upon the candidates violating Code of conduct of Examination Rule at the Centre. At one place when it prescribes penalty for possession of incriminating material not related to the subject of the examination; at the other place for seizure of incriminating materials relating to the subject and the penalties are therefore in the former severe warning whereas for the latter debarring of one examination in all subjects including the one where there has been malpractice. Therefore, though the incriminating material has been referred to in both the type of penalty yet there has been prescription of lesser punishment for the recovery of material not pertaining to the subject under examination for which the subject where the examination is going on. 8. Coming to the point of subsequent appearance in the Annual Examination of the year 2014 by the petitioner as an Ex-Regular candidate and his failure to succeed the petitioner under no circumstances can be held to have been estopped from questioning the decision of withholding and cancellation of the result of the Annual HSC Exam 2012. Because of the delay and crossing of his age to shape up his future in order to take a chance though he has appeared in the said examination of the year 2014 that in my considered view should stand as a bar in further pursuing the present writ application which was then pending for its decision on merit. In an extreme case although in a different factual setting in case of Badrinath vs. Govt. of Tamilnadu and others; AIR 2000 SC 3243 , the petitioner has challenged the decision of Departmental Promotion Committee and assessment in regard to merit and fitness for promotion alleging mala fides. The court found it to be a very exceptional case having serious overtones of legal bias. In that view of the matter though after long lapse of time out of disgust, the petitioner therein had taken voluntary retirement, the Apex Court, declined to take it to be standing on the way of challenging the earlier actions of the authority in connection with his promotion and even by moulding the relief granted all said benefits including pensionary benefits. In this case said subsequent appearance in the examination and its result going against the petitioner is of no such fatal consequence for this writ application to proceed for decision on merit when we simply take into account the ground reality that in the matter of examination there remains all the possibility that a candidate even after passing once if sits again, there remains the uncertainty and he may even score badly in the next examination than the earlier one. So if a candidate has been unjustly not declared to have passed in the first examination, his subsequent scoring in the next exam loses all the significance. So if a candidate has been unjustly not declared to have passed in the first examination, his subsequent scoring in the next exam loses all the significance. Thus in this case because of appearance of the petitioner in the subsequent examination he cannot be estopped to continue with this writ application questioning the penalty with which he has been visited with as unjust and disproportionate even being not in consonance with the guidelines nor can it be said that he acquiesced or waived the right to challenge as above. This cannot be equated with the case of a candidate questioning the procedure adopted during the selection or the criterias after appearing in the selection process without any demur knowing fully well about all those procedures and criterias for selection. 9. In the instant case, the report of the members of the squad on conduct of examination in so far as the petitioner is concerned is that he was in possession of a piece of written paper while appearing in the examination and that has been taken as the sole basis for finally withholding the result of the petitioner and then cancellation of the same for adoption of mal practice. This Court in exercise of its power under Article 226 of the Constitution cannot now substitute its finding which has to be based on the material placed before the committee as that an appellate court in sitting over the decision of the said committee. But as it appears in the case that whether the said writing on the piece of paper is relevant to the Science Paper-II in which the petitioner was appearing in the examination in the hall on that relevant day or not has not been taken into account by the Committee. The Committee without satisfaction on that aspect cannot come to the conclusion that the petitioner has resorted mal practice unless the writings on the piece of paper recovered from the possession of the petitioner concerns with or has nexus with the subject in which the petitioner was taking the examination in the hall on that relevant date during the visit of the members of the examination squad. Be that as it may, it is not for this Court exercising power under Article 226 of the Constitution now to specifically find out as to whether the written piece of paper recovered from the possession of the petitioner has any relevance to the subject in which the petitioner was taking the examination in the examination hall. The committee is vested with the power to reach at the conclusion as to whether there has been adoption of mal practice by the petitioner or not and take appropriate decision in accordance with law. 10. In view of discussion as above, mere possession of piece of paper containing some writings, without specific finding that it has the relevancy to the paper concerned in which the petitioner was taking the examination on that date, no action as taken is called for, without ascertainment that the writings has the nexus with the subject in which the petitioner was taking the examination and as such kept during the examination. In that view of the matter, it is now left to the examination committee to take a decision afresh after hearing the petitioner whether the writings in the piece of paper recovered from the possession of the petitioner is relevant to the subject in which he was taking the examination in the examination hall on that day or not so as to further proceed in the matter of imposition of penalty and decide the appropriate penalty, if any, that the petitioner is liable to be visited with. 11. In the wake of aforesaid, this Court while quashing the decision of the examination committee and consequent notification No. 2096 (M.P. Section) dated 18.7.2012 directs that the matter will now go back to the said committee for a fresh decision keeping in view the observations made hereinabove and in accordance with law within a period of three months from the date of communication of the order or production of its certified copy whichever is earlier. With the aforesaid direction, the writ petition is allowed. There shall be no order as to cost.