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2017 DIGILAW 769 (PAT)

Manoj Kumar v. State of Bihar

2017-06-20

CHAKRADHARI SHARAN SINGH

body2017
JUDGMENT : Chakradhari Sharan Singh, J. 1. The petitioner seeks quashing of Office Order, dated 17.01.2014, bearing Memo No. 114, issued by the Examination Controller, Bihar Combined Entrance Competitive Examination Board (hereinafter referred to as 'BCECEB'), whereby provisional allotment order for admission of the petitioner to diploma course in engineering in Government Polytechnic (Gaya) has been cancelled. 2. The petitioner had applied for Diploma Certificate Entrance Competitive Examination (DCECE), 2010, held by BCECEB. The examination was held on 25.04.2010. The petitioner claimed that he had appeared for the said test with his Roll No. 90106105. He qualified in the said examination and was called for counselling on 11.06.2010, when hand-writing sample of the petitioner was taken for the purpose of matching/tallying it with the petitioner's handwriting taken on the O.M.R. answer sheet of the said examination, on the date of examination. 3. It is noteworthy that in order to obviate any chance of impersonation in competitive entrance examination, BCECEB had been following a system in which a candidate was made to write one passage in Devnagari at prescribed space on the O.M.R. answer sheet of respective competitive examination. At the time of counselling of candidates, successful in the written examination, sample hand-writing of the candidate was taken again in the presence of the officials holding counselling. The two samples of hand-writing, one taken on the O.M.R. answer sheet on the date of examination and the other taken at the time of counselling were, thereafter matched/compared so as to ensure that both the handwritings were of the same person. In case, there appeared to be any doubt over the said hand-writings not matching, the BCECEB used to send the two samples of hand-writing to Forensic Science Laboratory for comparison. The candidates were, in the mean while, issued provisional allotment of a college for admission to polytechnic course, subject to final hand-writing verification report of the Forensic Science Laboratory, provided the concerned candidate submitted an affidavit stating that he would accept the decision of the BCECEB based on the hand-writing verification report, submitted by the Forensic Science Laboratory. 4. This is not in dispute that the authorities, at the time of counselling found apparent difference between the sample hand-writing of the petitioner taken on the O.M.R. answer sheet at the time of examination and that obtained at the time of counselling. 4. This is not in dispute that the authorities, at the time of counselling found apparent difference between the sample hand-writing of the petitioner taken on the O.M.R. answer sheet at the time of examination and that obtained at the time of counselling. The matter was accordingly decided to be referred to the Forensic Science Laboratory for comparison, verification and report. The petitioner had opted admission in Civil branch of Gaya Polytechnic College, Gaya. This is also not in dispute that the petitioner had submitted an affidavit at the time of counselling mentioning specifically therein as follows:- (i) As per the procedure his specimen handwriting was obtained during the counseling and the same was compared with the handwriting on OMR Answer Sheet corresponding to his Roll Number. As per recommendation that his handwriting is not matching with the handwriting on OMR Answer Sheet corresponding to his Roll Number, the same are being sent to the FSL for verification. (ii) In that context after being aware of every facts he swears that his provisional admission in Govt. Polytechnic Gaya will be fully covered by the final report of the FSL with respect to his handwriting verification and if the report of FSL will reveal that his specimen handwriting is not matching, his candidature based on DCECE-2010 will be cancelled and suitable legal action will be initiated against him. (iii) He is putting his signature on this affidavit after being fully aware of the matter as mentioned in Para-1 and Para-2 above. 5. The statement to this effect has been made in paragraph 13 of the counter affidavit filed on behalf of the BCECEB, which has not been denied. 6. (iii) He is putting his signature on this affidavit after being fully aware of the matter as mentioned in Para-1 and Para-2 above. 5. The statement to this effect has been made in paragraph 13 of the counter affidavit filed on behalf of the BCECEB, which has not been denied. 6. The affidavit has been brought on record by way of Annexure-C to the counter affidavit, which reads thus: ^^eSa eukst dqekj MhŒlhŒbZŒlhŒbZŒ 2010] jksy uEcj 90106105 es/kk dzekad 643 dksfV&lkekU iq=@iq=h Jh ys[kUnzj jk;] xzke&lfnvkSrk] iksLV&lfnvkSrk] Fkkuk&Hkxokuiqj] ftykⓈ'kkyh dk fuoklh gw¡ vkSj fof/kor 'kiFkiwoZd izekf.kr ,oa ?kksf"kr djrk@djrh gw¡%& ¼1½ ;g fd flfoy dkslZ esa ukekadu gsrq fnukad 11-06-2010 dh dkWmUlsfyax esa fu/kkZfjr izfdz;kuqlkj eq>ls nks ckj nks vyx&vyx dkWmUlsfyax nyksa us fy[kkoV dk uewuk fy;k vkS bl uewus esa fy[kh x;h fy[kkoV dh rqyuk vkSj tk¡p MhŒlhŒbZŒlhŒbZŒ 2010 dh esjs jksy uEcj okys mrj&i= esa ijh{kk ds nkSjku fy[kh x;h fy[kkoV ls dh x;hA fy[kkoV ugha feyus dh vuq'kalk ds vkyksd esa esjh fy[kkoV dh ,QŒ,lŒ,yŒ ¼Qksjafld lk;al yscksjsVªh½ }kjk dh tk;sxhA ¼2½ ;g fd mDr ifjizs{; esa eSa LosPNk iwoZd lHkh rF;ksa ls voxr gksdj viuh ftEesnkjh ij ;g 'kiFk ysdj ?kksf"kr djrk@djrh gw¡ fd vxj fnukad 11-06-2010 dks lEiUu dkWmUlsfyax esa es/kk≶&fodYi ds vk/kkj ij vkSicfU/kd :i ls vkoafVr ikB~;dze flfoy laLFkku thŒihŒ x;k ds vuqlkj esjk vkSicfU/kd ukekadu ,QŒ,lŒ,yŒ }kjk esjh fy[kkoV ds tk¡p izfrosnu ls iwjh rjg vkPNfnr gksxk vkSj fy[kkoV ds mDr tk¡p izfrosnu esa vxj fy[kkoV ugha feyus dk fu"d"kZ gksxk rks esjh MhŒlhŒbZŒlhŒbZŒ 2010 dh mEehnokjh ,oa esjk mDr laLFkku@ikB~;dze esa ukekadu jn~n djrs gq, esjs fo:} vko';d oSf/kd dkjZokbZ dh tk;sxhA ¼3½ ;g fd Åij of.kZr ¼1½ ,oa ¼2½ rd i<+dj ,oa le>dj lHkh rF;ksa ,oa lEiw.kZ oLrqfLFkfr ls voxr gksus ds i'pkr~ eSa ;g 'kiFk&i= gLrk{kfjr dj jgk@jgh gw¡ tks lR; gSA** 7. In view of the said affidavit, the BCECEB issued allotment order for petitioner's admission in Civil branch, Government Polytechnic, Gaya, on 09.07.2010, mentioning specifically that the admission order was being released in view of the affidavit submitted by the petitioner to the effect that his sample hand-writing obtained at the time of counselling and hand-writing on the O.M.R. answer sheet had been sent to the Forensic Science Laboratory for verification and that his admission shall be fully covered by the Forensic Science Laboratory Report. It was also mentioned in the said allotment order that if the report of the Forensic Science Laboratory went against him, his provisional admission and candidature shall automatically be cancelled and necessary legal action shall be initiated against him. The allotment order clearly mentioned that the admission order was being released provisionally subject to final report of the Forensic Science Laboratory and if the identity of the candidate was not established on the basis of Forensic Science Laboratory Report, his admission would be treated as cancelled. 8. The Forensic Science Laboratory submitted its report on 02.09.2013, holding that the two samples of handwriting, one obtained on the O.M.R. answer sheet at the time of examination and the other obtained at the time of counselling were not of the same person. The Forensic Science Laboratory Report also pointed out that the signature of the person who had appeared at the time of examination and who had participated in the counselling were, thus, not of the same person. 9. In terms of the affidavit sworn by the petitioner, as indicated above, to the effect that his admission shall stand cancelled if adverse Forensic Science Laboratory Report was submitted, the authorities, instead of cancelling the petitioner's candidature, decided to seek an explanation from him, in the light of the Forensic Science Laboratory's report. On request made by the BCECEB, the Principal, Gaya Polytechnic, Gaya, sought an explanation from the petitioner in this regard and the explanation so received was sent by the College to the BCECEB. Upon considering the petitioner's explanation, the BCECEB cancelled the petitioner's admission by Office Order, bearing Memo No. 114/2014, dated 17.01.2014, which has been assailed in the present writ application. 10. Learned Counsel appearing on behalf of the petitioner has submitted that the petitioner had sustained injury in his right hand while playing cricket, just two days before his entrance test was held. The entrance test was held on 25.04.2010; whereas, the petitioner is said to have sustained such injury on 23.04.2010. It is the case of the petitioner that in the first place there is no major variation in the sample hand-writing taken at the time of the entrance test and one taken in course of counselling. The entrance test was held on 25.04.2010; whereas, the petitioner is said to have sustained such injury on 23.04.2010. It is the case of the petitioner that in the first place there is no major variation in the sample hand-writing taken at the time of the entrance test and one taken in course of counselling. It is, secondly, being submitted that if, at all, there is some variation in the two samples of hand-writing, it is because of the injury which the petitioner had sustained and with the efflux of time, there could be minor variation in the hand-writing of a person. 11. It is further case of the petitioner that the Hand-Writing Expert has not assigned any reason, much less, cogent reason for arriving at a conclusion that the two samples of hand-writing did not match. Further, the action of the respondents based on Forensic Science Laboratory Report is vitiated also because the petitioner was not given any opportunity to cross-examine the Hand-Writing Expert. 12. Mr. Ashok Kumar, learned Counsel, appearing on behalf of the petitioner has argued that when the passage was written by the petitioner on the date of written test on 25.04.2010, there were slight variations in his hand-writing because of the injury which he had sustained only two days before the written test, i.e. on 23.05.2010. He could write property two months after the date on which the counselling was held since his condition had substantially improved within nearly two months, on 11.06.2010. He has also submitted that slight variation in the hand-writing of a person is quite natural with the lapse of time. He has gone to submit that the verification done by the Forensic Science Laboratory and the report submitted by it, which is the basis for action against the petitioner, is hit by Section 293 of the Code of Criminal Procedure, 1973 (in short, 'the Code') and Sections 45 and 47 of the Indian Evidence Act. 13. In the rejoinder to the counter affidavit, the petitioner has contended that the Forensic Science Laboratory has jurisdiction to entertain request for opinion from the Police during investigation of a case under the Code and/or sent by the Court under the Code only and not otherwise. 13. In the rejoinder to the counter affidavit, the petitioner has contended that the Forensic Science Laboratory has jurisdiction to entertain request for opinion from the Police during investigation of a case under the Code and/or sent by the Court under the Code only and not otherwise. It is accordingly his plea that the Forensic Science Laboratory did not have the jurisdiction to do verification of the two samples of the hand-writing and submit the report on the request made by the BCECEB. On that ground alone, according to the petitioner, the Forensic Science Laboratory's report deserves to be rejected. 14. It is the further case of the petitioner that since he has completed the course and passed the examination, his candidature cannot be cancelled on any ground since his relationship with the institution stood severed after having completed the course. 15. Learned Counsel appearing on behalf of the petitioner has, in support of his submissions, placed reliance on following decision of the Supreme Court and the High Courts:- 1. Punjab Engineering College, Chandigarh v. Sanjay Gulati and Others ( AIR 1983 SC 580 ) 2. Arun Sharma v. State of Madhya Pradesh [AIR 2015 (NOC) 348 (M.P.)] 3. Amrish Kumar v. State of Bihar and Others, reported in 2014 (2) PLJR 427 . 16. A counter affidavit has been filed on behalf of the BCECEB, justifying the action on various grounds; mainly on the ground that it was based on the undertaking given by the petitioner himself. Learned Counsel for the BCECEB has submitted that once the petitioner agreed for the samples of the hand-writing to be sent to the Forensic Science Laboratory for verification and comparison and undertook that his admission will depend on the report of the Forensic Science Laboratory, he cannot turn around and take a plea that Forensic Science Laboratory did not have any jurisdiction to entertain the request made by the BCECEB for verification of signature and/or hand-writing. 17. What has emerged undisputedly from the facts on record, which have been noted above, is that admission allotment order issued in favour of the petitioner by the BCECEB was provisional in nature. The said provisional admission allotment order was issued on an undertaking given by the petitioner on an affidavit. 17. What has emerged undisputedly from the facts on record, which have been noted above, is that admission allotment order issued in favour of the petitioner by the BCECEB was provisional in nature. The said provisional admission allotment order was issued on an undertaking given by the petitioner on an affidavit. At the time of issuance of provisional allotment order, the petitioner had not raised any objection to the procedure adopted by the BCECEB of sending the two samples of hand-writing for comparison and verification to the Forensic Science Laboratory; rather, he had agreed to it. He had agreed to the condition that his provisional admission shall stand cancelled once the Forensic Science Laboratory Report went against him. 18. Learned Counsel appearing on behalf of the BCECEB, in my view, is right in his submission that at this stage, the petitioner cannot turn around and question the very jurisdiction of the Forensic Science Laboratory to entertain the request made by the BCECEB for verification and comparison of the two samples of hand-writing. 19. That apart, I do not find any impropriety in the decision taken by the BCECEB to refer the two samples of hand-writing to Forensic Science Laboratory for the purpose of seeking expert's opinion after having found apparent difference between the two samples of hand-writing, in question. Nothing has been shown to me, on the basis of which it can be said that the Forensic Science Laboratory can act only on the basis of a request made by Police in connection with a criminal case. The plea that the act of the Forensic Science Laboratory in entertaining request from BCECEB to verify the two samples of hand-writing is in breach of Section 293 of the Code, is completely misconceived. Section 293 of the Code prescribes that any document purporting to be a report under the hand of a Government Certificate Expert to whom the section applies upon any matter or thing duly submitted to him for examination or analysis and report in the course of proceeding under the Code may be used in any enquiry, trial or other proceeding under the Code. The said provision does not and cannot put a bar on other Government agencies in taking aid of expert's opinion for the purpose of verification/comparison of hand-writings. 20. The said provision does not and cannot put a bar on other Government agencies in taking aid of expert's opinion for the purpose of verification/comparison of hand-writings. 20. The plea that slight variation in the two samples of hand-writing is natural with the efflux of time is not, at all, acceptable since the gap is only of one-and-a-half months. 21. The plea, that after completion of course by the petitioner, his admission itself cannot be cancelled, in my opinion, is preposterous for two reasons. Firstly, the admission of the petitioner was provisional, depending upon the report of the Forensic Science Laboratory as per his own undertaking. Secondly, the cancellation of the petitioner's admission is based on the allegation of fraud committed at the time of entrance test. 22. I may usefully refer to a recent decision of the Supreme Court in the case of Nidhi Kaim and Another v. State of Madhya Pradesh and Others, reported in (2017) 2 SCALE 626, wherein the Supreme Court refused to legitimize the M.B.B.S. degree obtained by the candidates, who had been found to have adopted unfair means at the time of entry into the college. The Supreme Court, in the case of Nidhi Kaim (supra), held that even the trivialist of wrong doing based on singular act of fraud cannot be countenanced in the name of justice. 23. On the basis of materials available on record, I have no hesitation in holding that since the petitioner was not sure of getting admission to the course on the basis of his own merit, he manipulated his admission to the course by setting up someone else in his place to appear for the entrance test. He is, therefore, not entitled for any relief in equitable jurisdiction under Article 226 of the Constitution of India. The relevant portion of paragraph 72 of the Supreme Court's decision, in the case of Nidhi Kaim (supra), is apt answer to the plea taken on behalf of the petitioner, which is being reproduced here-in-below:- "72. ............... We may not be completely wrong in our understanding, if we conclude, that the appellants were quite sure, that they would not be able to gain admission to the MBBS course, on their own merit. That is why, they had to strategize their admission to the MBBS course. ............... We may not be completely wrong in our understanding, if we conclude, that the appellants were quite sure, that they would not be able to gain admission to the MBBS course, on their own merit. That is why, they had to strategize their admission to the MBBS course. We therefore, reject the contention advanced on behalf of the appellants, that the appellants were meritorious students, and as such, their admission to the MBBS course, deserved to be preserved. If this is where the truth lies (which we are sure, it does), namely, that the appellants were quite sure that they would not be able to gain admission to the MBBS course on their own merit, surely the appellants are not entitled to any equitable consideration. And, in that view of the matter, it would not be proper to extend to the appellants, relief under Article 142 of the Constitution." 24. The petitioner has been found by the authorities to be a beneficiary of the acts of deceit and deception, which finding cannot be held to be erroneous or perverse. In that view of the matter, keeping in mind the ratio laid down, in the case of Nidhi Kaim (supra), his admission to the course cannot be legalized or legitimized. 25. Any benefit obtained by fraud will have its natural consequence. In the present case, the fraud was detected even before the petitioner was to be admitted in the polytechnic college. Only for the purpose of coming to a definite conclusion as to whether it was a fraud or not, final decision was deferred by the BCECEB till Forensic Science Laboratory's report was made available. It was with the consent of the petitioner that he was provisionally granted admission subject to the result of the verification to be made by the Forensic Science Laboratory on two samples of handwriting. The logical inference based on the report of the Forensic Science Laboratory is that the person who had appeared for the entrance test with Roll No. 90106105 and the person who appeared with the same roll number at the time of counselling were different. The petitioner apparently wanted to be successful for admission by playing fraud. 26. In such circumstances, it would be unjust to hold that since he completed the course, the petitioner should be allowed to have the benefit of certificates and qualification etc. 27. The petitioner apparently wanted to be successful for admission by playing fraud. 26. In such circumstances, it would be unjust to hold that since he completed the course, the petitioner should be allowed to have the benefit of certificates and qualification etc. 27. The Supreme Court's decision, in the case of Sanjay Gulati (supra), relied on behalf of the petitioner is of no avail in the facts and circumstances of the present case where the finding against the petitioner is of committing fraud for the purpose of securing admission to the concerned polytechnic course. The case of the petitioner is squarely covered by the Supreme Court's decision, in the case of Nidhi Kaim (supra). 28. The order, in the case of Amrish Kumar (supra), was passed in the peculiar facts and circumstances of that case as is evident from paragraph 9 of the said decision. In that case, the CD of video-recording was produced for examination in which the petitioner of that case was found to be present for the entrance test. The said decision cannot be treated to be a binding precedent, since the said order was passed in the peculiar facts and circumstances of that case. 29. The Division Bench decision, in the case of Arun Sharma (supra), relied on by learned Counsel for the petitioner has also no application since the Madhya Pradesh High Court interfered in the said case on the ground of violation of principle of natural justice since the Forensic Science Laboratory's report was not supplied to the aggrieved person in that case. This is not the plea taken in the present proceeding on behalf of the petitioner. 30. Considering the above, I find this application to be devoid of any merit, which is accordingly dismissed. 31. However, there shall be no order as to costs. Application Dismissed.