Mohd. Jamal Rushdi vs Madhyamik Shiksha Parishad and Others

A.N. Gupta, J.—Petitioner was a regular student of Aminabad Inter College, Lucknow and was studying in Intermediate final. (12th class). He appeared in 1996 examination of U.P. Board of High School and Intermediate and Bappa Sri Narain Vocational Inter College, Lucknow was his centre. 0263837 was Roll Number assigned to him for the purpose of said examination. On 9th April, 1996, the Petitioner appeared in English second paper. Question No. 5 of which was compulsory for writing an essay in 250 words on any one of the five topics. When the Petitioner was attempting the said paper, a Flying squad consisting of K. D. Mishra. Assistant Basic Education Officer and Km. Urmila Shukla. Deputy Director of Education visited the examination centre of the Petitioner to check, ft any, unfair means were being used by any candidate. The said Flying Squad recovered a printed page containing essay material on two or three topics. However, none of these topics were mentioned in question No. 15. In other words, the printed paper could not have been used by the Petitioner for copying. The answer book of the Petitioner was taken then and there and he was given another answer-book for attempting other questions. The result of the Petitioner was withheld and, therefore, he preferred this petition commanding the U.P. Board of High School and Intermediate (Madhyamik Shiksha Parishad. U.P., Allahabad) and other authorities to declare the result of the Petitioner and to supply a copy of the mark-sheet.

Learned standing counsel had accepted notice on behalf of opposite parties but neither the standing counsel was given any instructions nor any counter-affidavit had been filed inspite of several opportunities having been granted for the purpose. On 14.11.1996 when further time was sought for the purpose, time was granted on payment of Rs. 1,500 as costs payable personally by the Secretary, Madhyamik Shiksha Parishad. The Madhyamik Shiksha Parishad had not taken any action in the matter except withholding the result of the Petitioner. However, after the order dated 14.11.1996, a counter-affidavit was filed within which order dated 16.11.1996 is annexed as C.A.-3 according to which the entire intermediate examination of the Petitioner for the year 1996 has been cancelled on the basis that the Petitioner was guilty of moral turpitude inasmuch as he brought copying material in the examination hall which ultimatery turned out to be of no use to the Petitioner.

However, record relating to the Petitioner was summoned which has been produced. The Madhyamik Shiksha Parishad did not make any inquiry into the matter and did not record any statement of anyone. On the basis of the report of Flying Squad, that a printed slip was recovered, the action mentioned above has been taken against the Petitioner. The Principal of the Centre and the Superintendent of the Examination has made an endorsement that according to the Petitioner, paper was found on the floor only and was not recovered from his possession.

Km. Urmila Shukla, Deputy Director of Basic Education, was examined on oath in this Court. Km. Urmila Shukla stated that recovery of the printed paper was not made in her presence and the recovery was made by Sri K. D. Misra. According to her. Sri Misra had informed her that he recovered the said paper under the undergarment of the Petitioner. Sri K. D. Misra stated on oath that he had recovered the printed slip from the right hand of the Petitioner and at that time when he recovered the chit from the possession of the Petitioner, invigilators were standing at the gate of the examination room looking outside. Sri Yogesh Chandra Mishra. Principal of the Examination Centre was also examined on oath and he stated that no recovery was made in his presence from the Petitioner who had informed him that the printed slip was recovered from the floor near the place where the Petitioner was sitting in the examination hall.

Even the case of the opposite parties is that the printed slip recovered at that time could not have been used in solving the examination paper because printed slip contained such essay topics which did not form part of the question paper. There is apparent contradiction between the statements of Km. Urmila Shukla and Sri K. D. Misra because Km. Urmila Shukla stated that Sri Misra had informed her that the printed slip was recovered under the undergarment of the Petitioner whereas Sri K. D. Misra stated that he had recovered it from the right hand of the Petitioner. This recovery was made at 3.10 p.m., i.e., after one hour and ten minutes of the commencement of the examination. By then, it would have been more than clear to the Petitioner and in fact to any one else that the printed slip in question was of no use in solving any of the questions of the examination paper. In these circumstances, it is not possible to believe that the Petitioner would continue to keep the printed slip in hand so as to make it available to the members of the Flying Squad. It is clear that Petitioner had neither copied in the examination nor had he used any unfair means. The theory of moral turpitude has been coined by the opposite parties deliberately after this Court had passed an order requiring senior most officer of Madhyamik Shiksha Parishad to pay Rs. 1,500 as cost personally. In these circumstances, impugned order dated 16.11.1996 cannot be permitted to remain as it is totally arbitrary and unreasonable.

The result is that this petition succeeds and is allowed with costs. The order dated 16.11.1996 cancelling the intermediate examination of the Petitioner held in the year 1996 is hereby quashed. The opposite parties are directed to declare the result of the Petitioner within a week and to furnish him with a mark-sheet from the date a certified copy of this order is produced before the Secretary. Madhyamik Shiksha Parishad, U.P., Allahabad. Rs. 1,500 as costs deposited by the Secretary of the Madhyamik Shiksha Parishad personally, shall be paid to the Legal Aid Committee of the High Court.