Jaikamal Khande vs State of Chhattisgarh and Others

Manindra Mohan Shrivastava, J.—Heard. By this petition, the petitioner has called in question the correctness, legality and validity of the action of respondent No. 2 whereby examination and the result of the petitioner for the year 2008 has been cancelled and the petitioner has been debarred from appearing in the examination of the year 2008 and 2010.

Brief facts giving rise to this petition are that the petitioner was a regular student of Class 10th in Maruti Nandan Higher Secondary School, Mehandi, Pamgarh, District Janjgir-Champa during educational session 2007-2008. The petitioner appeared in the High School Certificate Examination conducted in the month of March, 2008 from Govt. Middle School, Bhautara as centre. After the results were declared, the petitioner came to know that his Roll Number did not find place in the results. Thereafter, the petitioner came to know upon receipt of document dated 17-7-2008 (Annexure P-2) that the respondent No. 2 has cancelled his examination and also debarred from appearing in the examination of the year 2008 and 2010 for the reason that in enquiry, the petitioner was found guilty of using unfair means. The petitioner thereafter, submitted a representation to the respondent No. 2 on 5-12-2008 (Annexure P-4) stating that he had not used unfair means in the examination, and therefore, proper decision may be taken in his case. in the representation, he has stated to have been annexed the explanation of the Principal and the Centre Superintendent. When no decision was taken on his representation nor his grievance redressed, the petitioner has approached this Court.

The grounds on which, learned counsel for the petitioner sought to assail the validity of the proceedings and order of cancellation of result and debarring the petitioner from subsequent examinations, are that his examination has been cancelled and he has been debarred without giving any opportunity of hearing and action of the respondent is arbitrary. Learned counsel for the petitioner contended that the action of the respondent No. 2 in cancelling the examination and the result of the petitioner in the year 2008 and debarring him from subsequent examinations has drastic consequences to follow. As this involved serious civil consequences to ensue, the petitioner was entitled to proper notice and an opportunity to show cause against such inaction. It has also been argued that the petitioner has not used any illegal and unfair means during the examination.

On the other hand, learned counsel for respondent No. 2 submitted that the decision to cancel the examination and result of the petitioner in the year 2008, in which he appeared and to debar him from subsequent examinations, is based on detailed and proper enquiry, as a result of which, it was found that the petitioner had used unfair means. Learned counsel for respondent No. 2 argued that the Head Examiner communicated to the Centre Valuation Officer on 15-4-2008 that in one answer sheet of examination centre, No. 24198, there is a difference in the handwriting in the original answer sheet and the supplementary answer sheet. Thereafter, the Centre Valuation Officer informed the Secretary (Confidential) of the Board along with the opinion of the Head Examiner and the Examiner, vide memo dated 16-4-2008 (Annexure R-2/2). The Board had already decided in its meeting held on 10-4-2008 (Annexure R-2/3) that in case where difference of handwriting were found in the answer sheets, the results would be liable to be cancelled and the candidate would be debarred from appearing in the next two consecutive examinations. It is further argued that having found such a serious discrepancy, which made the petitioner liable for using unfair means before taking any action, a show cause notice was issued to the petitioner on 26-5-2008 vide Annexure R-2/4 informing the petitioner that there is difference in the handwriting in the supplementary answer sheet. It was stated in the notice that if the petitioner docs not submit any reply within 15 days from the date of issuance of the letter, the decision would be taken in the case of the petitioner. liven thereafter, the petitioner did not come out with any reply or explanation for the alleged discrepancy, and therefore, the respondent No. 2 decided to cancel the examination and result of the petitioner for the year 2008 and also debarred him from the examination of two consecutive years.

As the petitioner had categorically alleged in the petition and it was the main plank of the submission, to assail the validity of the action of cancellation, that he has not been given opportunity of hearing, whereas respondent No. 2 in his return have stated that the notice was issued to the petitioner, this Court directed the respondent No. 2 on 6-1-2011 to place on record the proof, if any, of service of notice on the petitioner. Learned counsel for respondent No. 2 submitted that the notice issued to the petitioner was despatched Under Postal Certificate certified by the concerned Post Office. Learned counsel for respondent No. 2 has shown to this Court, the original despatch register which contains an entry at S. No. 3450 dated 26-5-2008 in the name of the petitioner C/o the Principal of Govt. Middle School, Bhautara, District Janjgir-Champa. The register, however, does not disclose as to by what mode, notices were despatched to the petitioner. There is no noting that it was sent to the petitioner by registered post nor any acknowledgment of having sent the same by registered post is proved by placing on record any proof thereof as also there is no pleading in that regard. Moreover, the notice (Annexure R-2/4) dated 26-5-2008 is sought to be issued to the petitioner at the address of the Principal of Govt. Middle School, who is a party before this Court as respondent No. 4 in the petition. There is no affidavit or any proof placed before this Court by the respondent No. 4 that the petitioner was served with the notice because the notice bore the address of the Principal, and therefore, the petitioner could be served only through the Principal and not at any other address much less address of his residence. Therefore, it is difficult to accept the submission of learned counsel for respondent No. 2 that the petitioner was not only issued show cause notice but was also served with the notices. Under these circumstances, in the absence of any proof of service of notice on the petitioner, I have to hold that though the notices may have been issued from the office of the respondent No. 2, yet the petitioner was not served with the notice, and therefore, he had no opportunity to explain the circumstances and reply the allegations regarding use of unfair means which arc quite serious in nature.

Though, the learned counsel for respondent No. 2 made an attempt to satisfy this Court that present is a case of foregone conclusion and as the handwriting in the supplementary answer sheets is apparently different, upon deeper examination and scrutiny of various documents which were shown to this Court including the answer sheets, supplementary answer sheets and other documents i.e. attendance sheet maintained in the concerned examination centre, it does not appear to be a case of foregone conclusion and in my opinion, the petitioner in the event of being heard, may be able to explain the discrepancy. This is because I have found that out of the two supplementary answer sheets which are attached with the main answer sheets, in the first supplementary even the roll number prima facie appear to be written by some other person. The second supplementary does not at once shows any difference in the handwriting. Therefore, the matter calls for an enquiry after giving proper opportunity of hearing to the petitioner. There is yet another aspect of the matter because of which I am not inclined to accept the submission of learned counsel for the respondent that the petitioner is not entitled to any relief only on the technical ground of violation of principles of natural justice. The representation was submitted by the petitioner after passing of the impugned order. He has stated that the Principal and the Centre Superintendent, both of them have submitted their explanation stating that no case of unfair means was found. Therefore, this is not one of those rare case where Court would be inclined to apply "Useless Formality Authority" due to it being a case of foregone conclusion, in the light of principles laid down by the Supreme Court in the case of State of Manipur and Others Vs. Y. Token Singh and Others, and Aligarh Muslim University and Others Vs. Mansoor Ali Khan,

Action against the petitioner had serious consequences to ensue and therefore there cannot be two opinions, that it required opportunity of hearing to be afforded before passing such order. As I have held hereinabove, that there is no proof and the respondent has failed to establish that the notices issued to the petitioner were served upon him, the impugned order cancelling the result and examination of the petitioner and debarring him from subsequent examination is declared illegal and is hereby set aside.

The respondent No. 2 shall be at liberty to hold enquiry after giving the petitioner due and proper opportunity of hearing. However, in the event no enquiry is held or in the enquiry, charges are not established against the petitioner, the results of the petitioner, on the basis of his performance in the examination in the year 2008, shall be declared by the respondents. The enquiry, if any, shall be concluded as early as possible preferably within a period of three months from the date of receipt of a copy of this order. In view of foregoing, the petition is allowed to the extent indicated above.