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2021 DIGILAW 142 (JK)

Amit Padha v. UT of Jammu and Kashmir

2021-04-01

SANJEEV KUMAR

body2021
JUDGMENT : The petitioners are minor and have filed this writ petition through their respective fathers. The petitioners were students of Matriculation in the Krishtu Jyoti Convent School, Samba and had appeared in the annual examination of Matriculation for the session Regular-2020. As per the results and the Matriculation mark-sheets issued by respondent No 2, petitioner No.1 was declared not qualified for promotion to 11th class for he had obtained E1 and E2 grade in Mathematics and Social Science subjects. Petitioner No.2 was also not declared qualified for promotion to 11th class as he had obtained E1 grade in Mathematics. Similarly, petitioner No.3 too was not declared qualified for 11th class for the reason that he had obtained E2 grade in Social Science subject in Matriculation examination. Consequently, the petitioners applied as private candidates for Matriculation examination in the subjects they had not qualified in the Regular Annual examination-2020. After the petitioners had applied as private candidates for Matriculation examination in the subjects they had failed in the annual examination, respondent No.2 issued a Notification bearing No. F(Acad-C)B/A-P(Pvt.)/X/XII)SZ/20 dated 19.09.2020 providing for mass promotion of candidates having passed in two or more subjects in Matriculation examination. It is pleaded that respondent No.2, after promulgating the decision with regard to mass promotion of candidates as aforesaid, declared the result on 21.10.2020, but the petitioners could find their names in the list of qualified candidates. 2. The petitioners claim that they immediately approached respondent No.1 and enquired about their exclusion from the benefit of mass promotion. Respondent No.1, after going through the records, apprised the petitioners that they could not be given the benefit of promotion as their applications forms along with examination fee were never received by respondent No.1. The petitioners immediately approached the Sub-office of JK BOSE at Samba, which in turn, advised them to approach respondent No.5. It is complained by the petitioners that respondent No.5 initially dilly dallied the matter and wasted entire one month in the process, but later on, admitted its fault in the month of November and took shelter to the situation that had arisen due to COVID-19 infections for not processing their applications and sending them to respondent No.1. It is complained by the petitioners that respondent No.5 initially dilly dallied the matter and wasted entire one month in the process, but later on, admitted its fault in the month of November and took shelter to the situation that had arisen due to COVID-19 infections for not processing their applications and sending them to respondent No.1. The petitioners claim that thereafter they made all possible efforts to see that their applications along with fee which they had already submitted to respondent No.5 reaches respondent Nos.1 and 2 and they are also given the benefit of mass promotion as had been given by respondent No.1 to several candidates similarly situated with the petitioners. It is in this backdrop, the petitioners after having failed to persuade respondent No.1 to accept their belated application forms and fee, filed the instant petition seeking inter alia a direction to respondent Nos. 1 to 3 to accept their examination fee for biannual examination of Matriculation and declare them having passed Matriculation in terms of the Notification dated 19.09.2020 (supra). 3. On being put on notice, respondent Nos. 1 to 4 and respondent No.5 have filed their separate objections. In the objections filed by respondent Nos. 1 to 4, it is submitted that the writ petition as against respondent No. 1 to 4 is without any cause of action. It is submitted that in terms of Notification aforesaid, the benefit of mass promotion to the candidates of 10th class examination private biannual Session 2020 Summer Zone area of Jammu provide was only extended and applicable to the candidates who would submit their permission-cum-admission form of 10th class examination to the Board within the time stipulated therefor. It is submitted that for the purpose of submission of permission-cum-admission forms, the Board had issued a Notification dated 07.08.2020 with the last date fixed for the purpose as 17.08.2020. Keeping in view Covid-19 restrictions and the situation arising therefrom, the date was extended from 17.08.2020 to 7.9.2020 and thereafter to 15.09.2020. It is, thus, submitted that after two extensions granted, the cut off date to submit the permission-cum-admission forms by the candidates to the Board was 15.09.2020. Since even before the extended cut off date i.e 15.09.2020, neither the permission-cum-admission forms of the petitioners, nor the fee was received, therefore, there was no question of considering the petitioners for mass promotion in terms of the Notification dated 19.09.2020. 4. Since even before the extended cut off date i.e 15.09.2020, neither the permission-cum-admission forms of the petitioners, nor the fee was received, therefore, there was no question of considering the petitioners for mass promotion in terms of the Notification dated 19.09.2020. 4. Respondent Nos. 1 to 4 have, thus, pleaded that after completion of the exercise, the result of mass promotion was declared on 21.10.2020 and thereafter, the process was closed. It is submitted that the respondents-Board received the request from the petitioners for accepting their application forms and examination fee on 2nd and 3rd of November, 2020 and, therefore, it was not possible to accept the request of the petitioners much after the cut off date and the declaration of results of the eligible candidates. 5. Respondent No.5, in the objections filed by it, has not denied the fact that the applications forms and the examination fee was submitted by the petitioners with its institution in the month of July 2020, but it is claimed that due to unprecedented situation created by Covid-19 infections in the Union Territory of Jammu and Kashmir, the functioning in all the offices had come to a grinding halt. It is in these circumstances, respondent No.5 could not process the permission-cum-admission forms of the petitioners and submit their fee to the Board Authorities. Other than ipsi dixit of respondent No.5 there is no cogent explanation tendered for the omission. 6. Having heard learned counsel for the parties and perused the record, it is not in dispute that the petitioners were eligible for mass promotion in terms of Notification dated 19.09.2020 issued by respondent No.2. It is also true that as per the said Notification followed by a Notification issued by respondent No.1 on 07.08.2020, the candidates eligible for mass promotion in the matriculation examination were obliged to submit their permission-cum-admission forms along with prescribed fee on or before the cut-off date fixed by the Board Authorities. As is evident from the reply affidavit of respondents-Board and the Annxures R-2, R-3 and R4, in the initial notification, the cut off date was 17.08.2020 which was extended to 07.09.2020 and ultimately, it was further extended to 15.09.2020. It is equally true that the Board Authorities had made it crystal clear that no admission-cum-permission forms shall be entertained after the expiry of the prescribed date. It is equally true that the Board Authorities had made it crystal clear that no admission-cum-permission forms shall be entertained after the expiry of the prescribed date. It is further evident from a reading of Annexures R-2, R-3 and R-4 that the candidates were advised to deposit their admission-cum-permission forms along with prescribed fee in the Board either themselves or through the institutions concerned. The petitioners, thus, had been given the option to deposit the forms and fee directly in the office of the Board or route them through their institution. 7. In the instant case, the petitioners had performed their obligations well within the prescribed time. They deposited their application forms as also the prescribed fee with respondent No.5 i.e., the institution from where they had appeared in the regular examination of Matriculation. This was done by the petitioners in the month of July, 2020 itself. However, respondent No.5 because of sheer negligence and oversight or for some other reason, did not forward the applications forms and the requisite fee of the petitioners to the Board office, as a result whereof, the Board did not receive any request from the petitioners and, therefore, did not consider them for mass promotion. Respondent No.5 has attributed this omission to the situation that had arisen due to Covid-19 restrictions. In these circumstances, the question that arises for consideration is, as to whether the petitioners, who are minor students of 10th class, should be made to suffer for the willful default or otherwise of respondent No.5. The answer to this question has to be ‘no’. Whatever was required to be done by the petitioners in terms of notification dated 19.09.2020 read with the subsequent notifications issued by respondent No.1 was done by the petitioners in time. It is the Board that had given an option to the petitioners to either submit their application forms and prescribed fee in the Board directly or through their institution. They adopted the second alternative and submitted their applications forms along with prescribed fee to respondent No.5 in the month of July, 2020 itself i.e, well before the cut off date. Had respondent No.5 acted with sense of urgency and responsibility, the application forms and the prescribed fee submitted by the petitioners would have reached the Board in time and the petitioners would have got the benefit of mass promotion and would have been declared qualified Matriculation. Had respondent No.5 acted with sense of urgency and responsibility, the application forms and the prescribed fee submitted by the petitioners would have reached the Board in time and the petitioners would have got the benefit of mass promotion and would have been declared qualified Matriculation. There is absolutely no dispute with regard to the eligibility of the petitioners for such mass promotion as provided in the Notification 19.09.2020. 8. In the aforesaid factual backdrop, there are two alternatives to deal with the situation. So far as the first alternative goes, Respondent No.5, on account of whose negligence the petitioners have suffered, can be held accountable and directed to adequately compensate the petitioners. The other alternative is to take a pragmatic and equitable view of the matter by directing the Board Authorities to perform the ritual of accepting the admission-cum-permission forms of the petitioners and prescribed fee and declare their results in terms of Notification dated 19.09.2020. In the given facts and circumstances, the possibility of respondent No.5 having failed to deposit the admission-cum-permission forms and the prescribed fee due to the reasons beyond its control, cannot be fully ruled out. Holding respondent No.5 responsible for its acts, that too, in the absence of any specific material, would not, in any manner, inure to the benefit of the petitioners. 9. For the foregoing reasons and having regard to the totality of facts and circumstances obtaining in the case, I am of the considered view that ends of justice would be met if this Court directs the JKBOSE to accept the admission-cum-application forms of the petitioners along with prescribed fee which was deposited by the petitioners with respondent No.5 in the month of July, 2020 and declare their results of Matriculation by giving the benefit of mass promotion as envisaged under the Notification of respondent No.2 dated 19.09.2020. I order accordingly. Let the needful as aforesaid be done by respondent No.1 without any further waste of time and, in any case, not later than two weeks from the date a copy of this judgment is served upon it. Writ petition is allowed in the aforesaid terms.