Punjab-Haryana High Court
Smt. Sukhvinder Kaur Saroya vs State Of Punjab And Others on 27 May, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CWP No. 8531 of 2007
Date of Decision: May 27, 2011
Smt. Sukhvinder Kaur Saroya
...Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MS. JUSTICE
JUSTICE RITU BAHRI
Present: Mr. M.L. Saggar, Senior Advocate, with
Mr. G.S. Brar, Advocate,
for the petitioner.
Mr. Piyush Kant Jain, Additional Advocate General,
Punjab, for respondent No. 1.
Mr. G.S. Bal, Advocate,
for respondent Nos. 2 and 3.
Mr. Harish Garg, Advocate,
for respondent No. 4.
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in Yes
the Digest?
M.M. KUMAR, J.
1. The instant petition filed under Article 226 of the Constitution challenges charge sheet dated 23.2.2007 (P-4) and show cause notices dated 23.2.2007 and 25.4.2007 (P-5 & P-7 respectively). Further a mandamus has been sought directing the respondents to accept the joining report of the petitioner in terms of the order dated 25.4.2007 passed by the Secretary, Education Department, Punjab-respondent No. 1 (P-8) and to allow her to 2 perform duties of Controller of Examinations, Punjab School Education Board, Mohali.
2. Facts of the case may first be noticed. The petitioner has the qualifications of M.A. (English) and LL.B. In 1993 she was brought on the panel of the Board as a retainer and remained as such till 28.7.1995, when she was selected and appointed as Legal Advisor and Law Officer in an open competition in the grade of Assistant Secretary in the Board in the pay scale of ` 2400- 4000+200 Special Pay. On 9.4.1999, she was promoted as Senior Legal Advisor and Law Officer in the grade of Deputy Secretary in the pay scale of ` 12000-15500+1000 Special Allowance.
3. In 2002, the post of Controller of Examination fell vacant. However, the same could not be filled up due to general ban on recruitments by the State of Punjab. On 3.10.2002, the Administrative Department on the request made by the Board advised that the post could be filled up by direct recruitment after lifting of the ban. However, in the meanwhile it could appoint eligible persons on its establishment on the basis of seniority and merit as Controller of Examination and Director Academic in the regular pay scale as a stop gap arrangement. It has been submitted that the following are the minimum educational and other qualifications prescribed under the Regulations for the post of Controller of Examination:
"a. 2nd class Master's Degree or its equivalent qualifiction from any Indian or foreign University or LL.B.; and b. 20 years experience in educational administration-
cum-teaching out of which 5 years experience as 3 Principal in degree college or 5 years experience as District Education Officer (Senior Scale) or higher grade post; or Five years experience as Deputy Secretary or in equivalent capacity in the office of the Board or in an equivalent capacity in the University or Education Department."
4. One Ms. Narinder Kaur was appointed as Controller of Examination and upon her retirement in 2004 a panel of eligible candidates was prepared and sent to the Department of Education, Government of Punjab, which also included the name of Ms. Pavitter Pal Kaur-respondent No. 4 despite the fact that she was facing criminal charges in a case FIR No. 12, dated 14.6.2002, under Sections 420, 467, 468, 471, 120-B IPC read with Section 13(1) and 13(2) of the Prevention of Corruption Act, 1988, registered by the Ropar police. Accordingly, the Government rejected her candidature. Other than this, the candidature of S. Khushbir Singh, Deputy Secretary was also rejected because he was ineligible. On 24.6.2004, the Principal Secretary to Government of Punjab, Department of School Education sent a note to the then Education Minister and the Chief Minister recommending the name of the petitioner for appointment as Controller of Examination because she answered the qualifications and served in the equivalent grade of Deputy Secretary of the Board for five years since 9.4.1999. On 27.8.2004, the petitioner was appointed as Controller of Examination in the grade of ` 14300-20100+1000 Special Allowance as a stop gap arrangement. She worked on the said post from 27.8.2004 to 6.12.2006 i.e. for about 2½ years and 4 also continued to hold the charge of the post of Senior Legal Advisor and Law Officer. It is claimed that her work was appreciated by the Members of the Board for excellent conduct of Annual Examinations-2005 in a meeting of the Board held on 2.9.2005.
5. At this stage, it would be pertinent to refer to Regulation 16(b) of the Punjab School Education Board Calendar, Volume-II pertaining to award of grace marks in the Senior Secondary Examination. Regulation 16(b) reads thus:
"Grace Marks (b)(i) if a candidate fails in one subject or more and the total deficiency is not more than 1% of the total aggregate of marks he shall be given these marks to make up the deficiency without regard to the number of subjects in which it is required in order to be declared to have passed the examination.
Provided that the grace marks upto 1% of the total aggregate of marks shall also be given to a candidate to enable him to be placed under compartment/reappear without regard to the number subjects he fails in:
Provided further that a candidate appearing in additional subject/s after passing Senior Secondary Examination, shall also be eligible for the grace marks but the limit of grace marks shall be upto 1% (one percent) of the total aggregate marks of the subject/s in which he appears.
(ii) A candidate appearing in compartment/reappear shall also be eligible for the grace marks but the limit of 5 grace marks shall be one percent (1%) of the total aggregate marks of the subject/s in which he appears.
(iii) A candidate shall be given upto 5 marks i.e. 1% of the aggregate marks as grace marks to improve the division or securing 50% marks in aggregate. However, a candidate who has already availed himself or the grace marks for passing the examination shall not be entitled to these marks for improving the division in the examination."
6. On 13.12.2004, Shri Bir devinder Singh, who was Member of the Legislative Assembly, Punjab, during 2002-2007, presented a 'Call Attention Notice' in the 18th Session of the Punjab Vidhan Sabha, raising a matter of urgent public importance, namely, decision of the Punjab School Education Board to grant grace marks up to 17 to the failed Science students in XII Class Examinations to raise the pass percentage of the result of the Education Board. It would be appropriate to read the said 'Call Attention Notice' and the same is reproduced as under:-
"PUNJAB VIDHAN SABHA CALL ATTENTION NOTICE UNDER RULE 66 (SERIAL NO. 4) "SARDAR BIR DEVINDER SINGH, MLA:- to draw the attention of the Government towards a matter of urgent public importance, namely, the recent decision taken by the Punjab School Education Board to grant up to 17 grace marks to the failed Science students in XII Class Examinations to raise the pass percentage of the 6 result of the Education Board which shows the declining level of education standards in the State and has caused widespread resentment amongst the general public which is genuinely concerned about failing (falling?) standards in the State. The students thus promoted with 17 grace marks will not be able to compete successfully on merit in the competitive examination and their future is going to be blocked altogether. It is particularly alarming when the education system in the schools is heading towards ultimate collapse and the agency entrusted with the responsibility of ensuring fairness to conducting and supervising the examination in the State is facilitating the failed students to march over the edge of merit of the laborious candidates.
Keeping in view the obvious and urgent importance of the matter, the Minister concerned may please be asked to make a statement on the floor of the House."
Chandigarh: Sd/- Nachhattar Singh Mavi The 13th December 2004. Secretary."
7. On 23.12.2005 (21.12.2005?), a meeting was held under the Chairmanship of Shri Harnam Dass Johar, the then Education Minister, Punjab, which was attended by various authorities of the Education Department, Punjab, besides Prof. H.S. Sidhu, Chairman, Punjab School Education Board-respondent No. 3. Issues concerning streamlining the system of conduct of examinations in 7 the State were discussed in the said meeting and some decisions were taken. On the issue of award of grace marks by the respondent Board, it was decided that no grace marks would be allowed other than the grace marks provided in the regulations of the Board (P-1).
8. The petitioner has claimed that she launched a vigorous campaign against cheating mafia in the Board Examinations, especially at notorious examination centers in districts Gurdaspur. In that regard, the name of Kalaswala Khalsa Senior Secondary School Kadian, Gurdaspur, has been specifically pointed out. It has further been pointed out that the petitioner had taken various steps to curb down the tendency of mass copying in the Board Examinations such as constitution of special flying squads and writing of Demi-official letters to all the Deputy Commissioners and Senior Superintendents of Police in the State to impose ban on assembly under Section 144 Cr.P.C. around examination centres during examination period. She also established a round the clock control room in order to monitor the cases of organised cheating. In this process, a report was received by her from the Incharge Flying Squad Team having Card No. 071 regarding misbehaviour and mass copying at Kalaswala Khalsa Senior Secondary School, Kadian on 14.3.2006 (P-2). On the basis of said report, she ordered cancellation of the examinations held at the said centre including certain other centres. Subsequently, the Examination Centres at Kalaswala Khalsa Senior Secondary School, Kadian, Gurdaspur and other delinquent schools were cancelled permanently. Upon this, the petitioner was told by the Chairman of the Board-respondent No. 3 that Sardar Partap Singh Bajwa, the then PWD Minister, 8 Punjab, was patron of the said school and he (the Minister) was very annoyed by her action. Accordingly, she was asked to prepare a fresh report regarding the said school. The petitioner expressed her inability to do so. Later on, the Chairman-respondent No. 3 passed orders restoring the centre at Kalaswala Khalsa School.
9. On the basis of the decisions taken in the meeting held on 23.12.2005 (21.12.2005?) under the chairmanship of the then Education Minister, Punjab (P-1), the petitioner issued instructions to the Delhi based firm engaged by the Board to prepare the result of Senior Secondary Examination March 2006 in accordance with the provisions of the Senior Secondary Examination Regulation 16(b) pertaining to award of grace marks as contained in the Punjab School Education Board Calendar Volume-II. It has been stated that despite a note written by the petitioner on the relevant file, the Chairman of the Board-respondent No. 3 was adamant to award 3 additional grace marks contrary to the regulations and the Government instructions and issued directions to the said Delhi based firm to re-prepare the result. The said firm informed respondent No. 4 that they would charge additional 60 paise per student for doing this. As a matter of fact, the Delhi based firm prepared the result as per directions of the Chairman-respondent No. 3 and raised a bill of ` 1,60,806/-. The result was declared in the first week of June 2006. Even a news item in this regard was published in the newspaper, namely, 'Rozana Ajit', dated 19.2.2007 (P-3). There were certain complaints made to the Government in this regard and accordingly the Government requisitioned the file/record pertaining to this matter.9
10. It has been alleged that in September 2006, Sardar Partap Singh Bajwa was given the additional charge of the School Education Department. After becoming the School Education Minister, he nominated Shri M.L. Sharma, Director of the Kalaswala Khalsa Senior Secondary School, Kadian, Gurdaspur, as Member of the Governing Body of the Punjab School Education Board. Not only this, he made all efforts to oust the petitioner from the post of Controller of Examinations of the Board. This is fortified from the fact that on 29.12.2006, Model Election Code of Conduct came into force in the State of Punjab in the wake of Punjab Vidhan Sabha elections. However, just a day before i.e. on 28.12.2006 one Shri Avtar Singh was appointed as a Controller of Examination on deputation.
11. It is alleged that the Chairman-respondent No. 3 and the Secretary of the Board-respondent No. 4 panicked and joined hands and a charge sheet dated 23.2.2007 along with a list of chargeswas issued to the petitioner under Regulation 8(A) read with Regulation 6 of the Punjab School Education Board Employees (Punishment and Appeal) Regulations, 1978. A perusal of list of charges shows that following six charges were levelled against the petitioner:-
1. As per narrative enclosed, Smt Sukhvinder Kaur Saroya d/o Sh Budh Singh, the then Controller of Examinations has misused her official position with mala fide intention by instructing the Computer firm at her own level to prepare result of 10+2 Examination March 2006 in contravention of orders issued by the office regarding declaration of result. 10
2. Smt. Sukhvinder Kaur Saroya refused to obey orders dated 25.5.2006 regarding declaration of result with additional grace marks.
3. By doing as such, Smt. Sukhvinder Kaur Saroya has violated Section (Regulation?) 5(h) of Employees Conduct Regulations, 1978.
4. Smt. Sukhvinder Kaur Saroya in contravention of office order, got result prepared without additional grace marks and sent for the result sheets in office and later the office had to get prepared the result afresh with additional grace marks. As a result thereof smt. Sukhvinder Kaur Saroya caused loss of Rs. 1,60,806/- to the office.
5. As a result of not strictly complying with orders dated 25.5.2006 pertaining to declaration of result, the result of 10+2 March 2006 was declared late which hurt the reputation of office.
6. Smt. Sukhvinder Kaur Saroya by not complying with orders dated 25.5.2006 pertaining to declaration of result deliberately till 29.5.2006, and on 29.5.2006 at critical moment sent application for leave in the afternoon to high officers which was an act of great irresponsibility.
Therefore, Smt. Sukhvinder Kaur Saroya, Senior Legal Advisor is liable for punishment under the Punjab School Education Board Employees (Punishment and Appeal) Regulations-1978."
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12. It has further been pleaded by the petitioner that on 24.4.2006, in the discharge of functions of Senior Legal advisor she sent a note inviting the attention of the Chairman to the observations made by Hon'ble the Supreme Court in the case of State of Karnataka v. Uma Devi [(2006) 4 SCC 1] on the issue of regulairsation of services of daily wagers/contract employees. After citing some old cases of regularisation pertaining to the respondent Board, she referred to the decision dated 6.1.2006 taken by the Board to regularise the services of daily water Restorers and opined that the same would be in violation of decision of Hon'ble Supreme Court in Uma Devi's case (supra). It was also pointed out by her in the said note that decision of the Board taken in its meeting held on 28.3.2006 to appoint daily wagers on contract basis would also be violative of the decisions of Hon'ble the Supreme Court. In the concluding para she suggested that for the sake of respect and dignity of the Board it would be imperative to take action as per the decisions of the Court. She also sent a copy of the said note to the Deputy Controller, Local Audit with the request that salary should not be ticked before confirming cases referred to in the said note from the Head Office. After 10 months of sending the said note, the Chairman-respondent No. 3 issued a show cause notice dated 23.2.2007 to the petitioner stating that the note dated 24.4.2006 was uncalled for and tantamount to challenging the supreme authority of the Board and that she deliberately tried to spoil the atmosphere of the Board (P-5). The show cause notice, which makes an interesting reading, reads thus:
" Deputy Controller, Local Auditor has vide Requisition No. 38, dated 25.4.07 (25.4.2006?) brought 12 to the notice of office that you had written to the Audit at your own level that salary of 41 clerks appointed by the office might not be ticked. In the matter of decision taken by the Board in its meeting on 6.1.2006 in respect of Restorers and in the matter of decision taken by the Board in its meeting on 28.3.2006 for appointing Daily Wage Clerks on contract basis, your action to stop Audit from compliance of decisions of the Board is an act of very irresponsibility. Decisions of the Board are decisions taken by the supreme authority of the Board, and no official/officer has right to raise any ifs and buts about such decisions. Similarly, your comments on regularisation of appointments on the basis of a Punjab Government notification are meaningless because office has acted as per policy of the Punjab Government, and before such action by the office, other departments of the Punjab Government had already implemented this policy.
Your note dated 24.04.2006 to the undersigned is uncalled for, and tantamount to challenging the supreme authority of the Board. Decisions taken in the meetings of the Board are approved after considering all aspects of cases. Your action without reason to stop Local Audit from implementing the decisions of the Board tantamount to interference in the working of the office and putting spanner in it. You have deliberately tried to spoil the atmosphere of the Board. As per Rule 7 of the 13 Punjab School Education Board Employees Conduct Rules:
"Every employee shall maintain strict secrecy regarding the Board's affairs and shall not divulge directly or indirectly any information of a confidential nature either to a member of the public or of the Board's staff, unless to do so by a judicial or other authority or unless instructed to do so by a superior's order, in writing, in the discharge of his duties."
As a consequence of your having sent a letter to the Deputy Controller Local Audit in violation of aforesaid Rule, the Audit has sent a requisition against the Board, and you have thus misused your position and hurt the honour and dignity of the Board.
xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx
Letter written to Audit by you tantamount to not accepting the decision of the supreme authority of the Board and this action of yours is in violation of Punjab School Education Board Employees Conduct Rules and make you liable for disciplinary action.
Before disciplinary action is initiated against you as per rules, you are directed to submit your written explanation to me within 10 days of issuance of this notice. In case your answer is not received within the stipulated period, it will be presumed that you have 14 nothing to say in the matter, strict disciplinary action will be taken against you as per rules.
This may be treated as most urgent."
13. An interview of the petitioner given to the correspondent of the newspaper 'Daily Ajit Punjabi' regarding the steps taken by the Board against cheating, mass copying, other malpractices as also regarding useful information and tips for students and their parents was published on 4.3.2007. On 7.3.2007, the Chairman- respondent No. 3 sought her explanation terming the said interview as having lowered the reputation of the Board (P-6), which was followed by a show cause notice dated 25.4.2007 stating that as to why disciplinary proceedings against her may not be initiated (P-7).
14. On a representation having been made by the petitioner against the appointment of Shri Avtar Singh as a Controller of Examination on deputation basis, vide order dated 28.12.2006, the said orders were withdrawn on 25.4.2007 and she was again given the temporary charge of the post of Controller of Examination (P-8). However, the Chairman-respondent No. 3 did not accept the joining report of the petitioner on the ground that her appointment was not made by the Board. Rather the Chairman-respondent No. 3 sent a communication dated 27.4.2007 to the Department of Education, Punjab, to reconsider the matter because the above mentioned charge sheet and show cause notices were pending against the petitioner (P-9).
15. It is in the backdrop of the aforementioned facts and circumstances that the petitioner has filed the instant petition. It is also pertinent to notice here that she had also filed another writ petition bearing CWP No. 3206 of 2007 challenging orders dated 15 31.3.2006 and 31.8.2006 appointing Ms. Pavitter Pal Kaur- respondent No. 4 as Secretary of the Board on temporary and regular basis respectively. The learned Single Judge of this Court vide judgment dated 10.3.2009 quashed her appointment. The relevant extract of the judgment passed by the learned Single Judge reads thus:
" ......The manner in which the Board has defended the action of appointment of Respondent No. 4 deserves no appreciation. Despite having the knowledge of pendency of criminal case and the serious nature of accusation, Respondent No. 4 has been preferred for appointment to such a sensitive post. The trial of the criminal case is still going on. Keeping in view the pendency of criminal proceedings as also the nature of the accusation, the Board should have refrained from appointing Respondent No. 4. But that has not happened. To the contrary, the Board is trying to defend its actions and the action of Respondent No. 4 treating her as a member of its family. This Court cannot be a moot spectator to such an action particularly when it concerns larger public interest. ......
In view of the above, I am of the considered view that continuance of Respondent No. 4 on the post of Secretary to the Punjab School Education Board, is not only undersirable but is unwarranted. This petition, accordingly, succeeds and the impugned order dated 31.8.2006 (Annexure P-9) is hereby quashed. The respondent-Board and the State of Punjab are directed 16 to shift Respondent No. 4 to some other post forthwith and appoint another eligible person as the Secretary to the Board within a period of three months from the date of receipt of a certified copy of this order. If for any reason, the post is required to be manner, a temporary arrangement be made in this regard. No costs."
16. Feeling aggrieved against the judgment dated 10.3.2009, respondent No. 4 preferred an appeal, which has been dismissed by the Letters Patent Bench vide order dated 7.10.2009. In paras 25 and 26 of the judgment, Letters Patent Bench observed as under:
"25. How could a public servant, facing a prosecution and departmental proceedings as well, be held to be 'fit' to hold the office of the Secretary of the Board is beyond our imagination. We are particularly distressed at the turn of events in view of the fact that there were indeed other candidates available who were not facing either a criminal prosecution or any departmental action. That the appointing authority opted to appoint the appellant as against them is, by itself, is indicative of the extraneous character of the appointment.
26. We are in complete agreement with the learned Single Judge that this Court cannot be a mute spectator to an action of the impugned category, particularly when it concerns larger public interest. We further observe that the reliance placed by the learned Single Judge in that context upon Centre for Public 17 Interest Litigation and another Vs. Union of India and another (2005) 8 Supreme Court Cases 2002 was appropriate."
17. It has also been pointed out by the petitioner that in a scam in recruitment of Clerks in the Board, wherein even the mark sheets prepared at the time of interview had been interpolated and cuttings made to give benefit to favoured candidates, this Court constituted a High Powered Committee consisting of one retired Judge of this Court and two retired District and Sessions Judges, who gave a clear finding against respondent No. 4 and indicted her and others in their report. Other than this an inquiry was also conducted by the Lokpal Punjab into the selection of Helpers in the Board where respondent No. 4 was one of the members of the interview committee. An adverse report against respondent No. 4 was given by the Lokpal although the same was subsequently stayed by this Court in CWP No. 17428 of 2008, vide order dated 1.10.2008.
18. In the written statement filed on behalf of respondent No. 2, the above narrated factual position has not been disputed. However, in respect of issuance of charge sheet it has been explained that since the petitioner failed to obey the orders and directions of her superiors, which resulted into delay in declaration of result and also caused financial loss to the Board, therefore, the same has rightly been issued. Similarly, the show cause notices have rightly been issued to her after noticing that the conduct of the petitioner was not in accordance with the Rules and Regulations of the Board. She was not to interact with the media without prior permission of the higher authorities. With respect to the instances 18 of mass copying and cheating in district Gurdaspur, especially in Kalaswala Khalsa Senior Secondary School, in reply to paras 12 and 13 of the petition on merit, it has been admitted that the examination of Math paper of 10+2 examination was cancelled on the basis of the report dated 14.3.2006 sent by Shri Surinder Kumar Malhotra, Incharge, Flying Squad Team. However, it has been denied that any direction was issued to the petitioner to prepare a fresh report regarding the said school. It has been pointed out that the principal of another school gave in writing to the Chairman- respondent No. 3 that Shri Surinder Kumar Malhotra has violated the office instructions and the Centre Superintendent brought it to the notice of the Principal who with the help of the police and the members of the Management Committee stopped him. The report against the school was, therefore, vindictive and on account of revengeful attitude. On receipt of the letter from the Principal, the answer sheets were got scrutinised through secrecy branch. After receipt of the report in a sealed cover, the Chairman took the decision to uphold the examination dated 14.3.2006 held at Kalaswala School. It has also been denied that respondent Nos. 3 and 4 have joined hands in harassing the petitioner or that there is any rivalry. In nut shell it has been urged that the petitioner has mis-projected the facts.
19. Respondent No. 4 also filed a short written statement and adopted the reply filed by the Board-respondent No. 2.
20. The most significant feature of this case which deserves to be highlighted at the outset is that numerous allegations of mala fide, which have direct bearing on the charges levelled against the petitioner have been alleged against Prof. Harbans Singh Sidhu, 19 Chairman of the Punjab School Education Board. There are specific and categorical averments made in paras 13 to 17 against Prof. Sidhu-respondent No. 3. Despite numerous opportunities having been granted, Prof. Sidhu-respondent No. 3 has not controverted the same. The law in such a situation is well settled. In the case of S. Partap Singh v. State of Punjab, Punjab, AIR 1964 SC 72, 72 the allegation of mala fide were levelled by a medical doctor, Dr. Partap Singh, against the then Chief Minister of the State of Punjab. Hon'ble the Supreme Court has observed that once the allegations are substantiated then in the absence of rebuttal by a proper affidavit on the part of the then Chief Minister, it was not possible to brush aside the allegations of mala fide because those allegations could have been properly replied only by the respondents. Accordingly, disciplinary proceedings initiated against Dr. Partap Singh were set aside on the grounds of express malice or improper motive. The view of the Constitution Bench in the aforesaid judgment is discernible from the following para, which reads thus:
"14. We shall first take up for consideration the several allegations that have been made and see whether they had been satisfactorily made out. Before proceeding further it is necessary to state that allegations of a personal character having been made against the Chief Minister, there could only be two ways in which they could be repelled. First, if the allegations were wholly irrelevant, and even if true, would not afford a basis upon which the appellant would be entitled to any relief, they need not have been answered and the appellant would derive no benefit from the respondents not 20 answering them. We have already dealt with this matter and have made it clear that if they were true and made out by acceptable evidence, they could not be ignored as irrelevant. (2) If they were relevant, in the absence of their intrinsic improbability, the allegations could be countered by documentary or affidavit evidence which would show their falsity. In the absence of such evidence they could be disproved only by the party against whom the allegations were made denying the same on oath. In the present case there were serious allegations made against the Chief Minister and there were several matters of which he alone could have personal knowledge and therefore which he alone could deny, but what was, however, placed before the Court in answer to the charges made against the Chief Minister was an affidavit by the Secretary to Government in the Medical Department who could only speak from official records and obviously not from personal knowledge about the several matters which were alleged against the Chief Minister. In these circumstances we do not think it would be proper to brush aside the allegations made by the appellant, particularly in respect of those matters where they are supported by some evidence of a documentary nature seeing that there is no contradiction by those persons who alone could have contradicted them. In making this observation we have in mind the Chief Minister as well as Mrs. Kairon against whom allegations 21 have been made but who have not chosen to state on oath the true facts according to them."
21. The real test before branding an act to be malicious, there has to be cogent evidence available on record to come to the conclusion as to whether, in fact, there was a bias or mala fide move which resulted in miscarriage of justice. A malicious act is equated with intentional act without just cause. Therefore, the test is as to whether there is a mere apprehension of bias or there is a real danger of bias. It is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion has to be drawn therefrom. The aforesaid observations have been made by Hon'ble the Supreme Court in the case of State of Punjab v. V.K. Khanna, Khanna, (2001) 2 SCC 330.
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22. It is in the backdrop of the aforesaid principles of law, we now examine the allegations made by the petitioner in various paragraphs of the petition and its relationship with the charges levelled against her in the charge sheet and the show cause notices issued to her. In para 12 of the petition, the petitioner has asserted that after taking over as Controller of Examinations she had launched a vigorous campaign against cheating mafia in Board Examinations, especially at certain notorious examination centres in district Gurdaspur. Kalaswala Khalsa Senior Secondary School Kadian, Gurdaspur, was under the vice grip of cheating mafia for over years and have become notorious for organised mass copying in the Board Examinations. On account of the campaign launched by the petitioner, round the clock control room was set up to monitor cases of organised cheating. On the basis of a report of a specially constituted flying squad, headed by Shri Surinder Kumar 22 Malhotra (P-2), regarding mass-copying and misbehaviour with the flying squad team by the school authorities during the examination conducted on 14.3.2006 at Kalaswala Khalsa Senior Secondary School Kadian, Gurdaspur, the petitioner cancelled the said examination along with examinations held on different dates at certain centres at other places. Taking the remedial measures, the examination centre at Kalaswala Khalsa Senior Secondary School Kadian, Gurdaspur along with other delinquent schools were cancelled permanently.
23. In respect of the aforesaid factual position the petitioner has levelled specific allegation against Prof. Sidhu-respondent No. 3 in para 13 of the petition. She has in unmistakable terms alleged that Prof. Sidhu-respondent No. 3 told her that Shri Partap Singh Bajwa, who was then PWD Minister in the State of Punjab, has been patron of the Kalaswala Khalsa Senior Secondary School Kadian, Gurdaspur and he was extremely annoyed on account of her action. Accordingly, she was asked to prepare a fresh report in respect of the aforesaid school, which she plainly refused. Later on, the issue concerning cancellation of examination and abolition of centre in Kalaswala Khalsa Senior Secondary School Kadian, Gurdaspur, for future Board Examinations was singled out for favour. The answer sheets were got scrutinised for an eye-wash and later on Prof. Sidhu-respondent No. 3 passed an order on his own not only restoring the centre at Kalaswala Khalsa Senior Secondary School Kadian, Gurdaspur, but also ordered withdrawal of earlier orders regarding cancellation of examination which were passed by the petitioner on the basis of the report of Shri Surinder Kumar Malhotra.
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24. The matter did not end there. In para 14 of the petition, the petitioner has further alleged that when S. Partap Singh Bajwa got additional portfolio of School Education in September 2006 and after becoming School Education Minister, he nominated one Shri M.L. Sharma, Director of the Kalaswala Khalsa Senior Secondary School Kadian, Gurdaspur, as member of the governing body of the Punjab School Education Board. Thereafter efforts were made to create a ground for installing his own man S. Avtar Singh as Controller of Examinations replacing the petitioner. The allegations in paras 14 and 15 are aimed at substantiating the allegations made by her in para 13 that how Prof. Sidhu-respondent No. 3 was hand in glove with the then Education Minister. Eventually, S. Avtar Singh was sent on deputation as Controller of Examinations in her place on 29.12.2006 despite the fact that Election Code had come into operation.
25. The petitioner has then levelled allegations in respect of instructions issued to a Delhi based firm engaged by the Board to prepare the result of Senior Secondary Examination March-2006. In that regard paras 17 to 20 of the petition reads as under:-
"17. That in compliance with the decision taken in the meeting dated 23.12.2005 (21.12.2005?) and directive issued vide letter dated 28.12.2005 (Annexure P/1), which was inter-alia, attended by the petitioner and the Chairman/Respondent No. 3, the petitioner had issued instructions to the Delhi based firm engaged by the Board to prepared the result of Senior Secondary Examination March, 2006 as per the provisions of Senior Secondary 24 Examination Regulation 16(b) pertaining to award of grace marks as contained to the Punjab School Education Board Cal. Vol.II.
18. That meanwhile the vested interests and the dominant lobby in the office of Chairman again raised the issue of grant of additional grace marks in violation of the decision of the Government dated 23.12.2005 (21.12.2005?). The petitioner on 25th May and 26 May, 2006 not only verbally explained the provisions but also recorded a note on the relevant file regarding the directives of the Government issued vide Memo. No. 5/13/2004- 05/Edu.3/34017 dated 28.12.2005, which cannot be circumvented by any means. However, the Chairman, Respondent No. 3 was adamant to award 03 additional grace marks contrary to regulation and the Government instructions and issued directions to the Delhi based firm to re- prepare the result accordingly. The Delhi based firm informed respondent No. 4 that they will charge additional 60 paise per student in this respect. The Delhi based firm prepared the result as directed by the Chairman and also claimed a sum of Rs. 1,60,806/-. The Chairman passed the aforesaid additional bill generated by the firm. The result was declared in the first week of June, 2006. It may also be mentioned that the Government was already considering to review the powers of Punjab 25 School Education Board to award additional grace marks.
19. That the complaints were made to the Government and the Government requisitioned the file/record pertaining to this matter and the Government is fully seized of this matter concerning serious violation of the directions/orders conveyed vide Memo. dated 28.12.2005 on the part of the Chairman/Respondent No. 3.
20. That a news item appeared in the Daily Ajit, Jalandhar dated 19.2.2007 that the Education Board had made payment of lacs of rupees even before the Government completed enquiry into the matter of additional grace marks by the Board in violation of its orders to the contrary. The copy of news item is attached as Annexure P/3. The Chairman and the Secretary panicked and joined hands to issue a charge sheet dated 23.02.2007 as to why disciplinary proceedings be not initiated against the petitioner. Copy of the charge sheet is attached as Annexure P/4."
26. The petitioner has further levelled allegations against Prof. Sidhu-respondent No. 3 that he was annoyed by a note appended by her in her capacity as Senior Legal Adviser inviting the attention of the Chairman to the judgment of Hon'ble the Supreme Court rendered in the case of Secretary, State of Karnataka v. Uma Devi, Devi, (2006) 4 SCC 1, 1 in a bid to apprise the legal position.
However, she was issued a show cause notice dated 23.2.2007 26 (P-5) in which allegations have been levelled that the note sent by her was uncalled for and tantamount to challenge the supreme authority of the Board. The petitioner has claimed in para 23 that no misconduct could be made out from her note dated 24.4.2006 which may warrant calling for her explanation. The allegations are specific in nature in para 23, which read thus:-
"23. That the show cause notice dated 23.02.2007 for taking action against the petitioner for bringing to the notice of the Chairman, the law laid down by the Hon'ble Apex Court and by the Hon'ble High Courts regarding regularisation of services of the persons other than those recruited through proper channel does not amount to challenging the authority of the Board rather the Board is duty bound to implement the judgments of the Hon'ble Apex Court and the Hon'ble High Court. The petitioner being the Senior Legal Advisor was under
legal obligation to prepare the note dated 24.04.2006 and bring it to the notice of the Chairman. The show cause notice is nothing but abuse of power to harm and harass the petitioner with a malafide intention to forestall her reappointment as Controller of Examinations. In fact, respondents No. 3 and 4 concealed these material facts about the various judgments and directions to the Board in different writ petitions while preparing the item to be placed before the Board since they had vested interests in appointing 27 daily wagers on contract basis and regularizing the services of Restorers without following proper procedure."
27. On the question of second show cause notice the petitioner has asserted that she was asked to explain why she has highlighted the steps taken by the Board against cheating and mass-copying and other malpractices and why she has gone to the Press where she has only given useful information and tips to students and their parents to ensure that the students perform better and prepare better, inviting attention of the parents to the diet of their wards and how to maintain good health. The interview which is published by the 'Daily Ajit' on 4.3.2007, when translated into English reads thus:
"Ajit Nagar, 3rd March (Shergill) - It is not easy to be a student. All the year there is homework/assignments, Sports, participation in annual functions, various competitions etc. etc. and above all Examinations. During the course of preparation for examinations, the first thing to be taken care of by parents is the diet of their wards. Plenty of water works magic for good health. I am giving some important tips which would be useful for the students. Peaceful and soothing atmosphere at home would greatly enhance students' concentration of mind. For difficult subjects more time has to be devoted. For the convenience of students, the control room in the main office of the Board remains open from 8.00 a.m. to 7.00 p.m. before and during the examinations. It is very essential for candidates who 28 have passed lower examination from other Boards of other States and are appearing in additional subjects in class 10 or 12 examinations to first obtain registration no. from the Registration Branch by showing original documents accompanied by photocopies. For this purpose, they must bring migration certificates from the Boards of other States. It has been observed in the past that some candidates fill up more than one forms for appearing privately.
Impersonation: No candidate should attempt to enter the examination hall with the intention to appear for some one else as the roll slip and signature chart bears photograph of the candidate. The result of the candidate for whom impersonation is done is cancelled and he is debarred from appearing in any of the next 9 examinations of the Board.
Misconduct and unfair means in the examinations: An unfair means committee is constituted every year in the Board. Any candidate who resorts to unfair means in the Examination Hall his report is received in the Board. The Unfair Means Committee give hearing to such candidates, and after affording opportunity of hearing to them decides the cases accordingly.
Smuggling of answer scripts: It has been noticed in the past that some candidates leave the examination hall without submitting their answer books to the supervisory staff. Later on when this is discovered, then cases are registered against them. It has also been noticed in the 29 past that in some cases attempts were made to harm the intelligent examinees by removing internal pages from their answer sheets and fixing the same in the answer sheets of weak candidates. To avoid this, the Board has now decided that candidates must write roll number on right corner of every third page of the answer sheet.
Physically/visually challenged candidates: Physically/ visually challenged candidates are provided the facility of a writer as per particulars filled in the examination boards.
Improvement of performance/division:
performance/division A candidate who has passed Matric or Senior Secondary Examination can improve his performance in one or more subject(s) but he can avail only two chances in the forthcoming examinations provided he has not passed next higher examination.
Tampering in Result Result Card/Certificate:
Card/Certificate If a candidate is found to have tempered result card/certificate or obtains result card or attempting to obtain result card on the basis of false documents then his result is annulled and in addition he can be debarred from appearing in next examination up to a period of 5 years.
Rectification of result: As per Regulations of the Board, it has power to rectify results declared by it. Rechecking of answer scripts: A candidate is entitled to get his answer books rechecked within 30 days of 30 declaration of result. For this purpose, he needs to deposit Rs. 200 per paper in the office of the Board. Action against supervisory staff in cases of mass copying: Just in case of last year when papers of candidates indulging in mass copying were cancelled and the Government of Punjab was moved to initiate disciplinary proceedings against supervisory staff deployed on duty on the day of mass copying. The same policy will be followed this year too."
28. However, Prof. Sidhu-respondent No. 3 termed the aforesaid interview as having lowered the reputation of the Board and called for the explanation of the petitioner, vide show cause notice dated 7.3.2007 (P-6), which was followed by another show cause notice dated 25.4.2007 (P-7) as to why disciplinary proceedings be not initiated against her. She has pointed out in para 25 that throughout the period from August 27, 2004 till December 29, 2006, in his capacity as Chairman, Prof. Sidhu- respondent No. 3 has been referring the Press to the petitioner regarding conduct of the Board Examinations. Therefore, her interview to the Press published on 4.3.2007, could not be regarded as absolutely un-authorised nor there is anything in the aforesaid interview which may lower the reputation of the Board.
29. The petitioner has also levelled allegations in para 31 of the petition against Prof. Sidhu-respondent No. 3 that he concealed material facts from the Governing Body of the Board and gave Ms. Pavittar Pal Kaur-respondent No. 4 temporary charge of the post of Secretary. She was also a candidate for the post of Controller of Examination but was not considered eligible on the ground being 31 main accused in a criminal case bearing FIR No. 12, dated 14.6.2002, registered by the Vigilance Bureau under Sections 420, 467, 468, 471 and 120-B IPC. She has been facing irregularities and dishonest interpolations in the marks awarded in the interview in the recruitment of Clerks. Serious strictures have been passed against her apart from others by a high powered Committee headed by Hon'ble Mr. Justice N.K. Agrawal, a former Judge of this Court, in his report dated 29.9.2003. The selection of 134 Clerks has already been set aside by this Court on 2.5.2003 while deciding CWP No. 16002 of 2002. The petitioner has also alleged that Prof. Sidhu-respondent No. 3 joined hands with M/s Pavittar Pal Kaur- respondent No. 4 in harassing her. It is in the background of the aforesaid facts and circumstances the impugned charge sheet dated 23.2.2007 (P-4) as well as two impugned show cause notices dated 23.2.2007 and 25.4.2007 (P-5 & P-7 respectively) issued to the petitioner needs to be examined.
30. The main allegation which permeates all the charges is that the petitioner has misused her position as Controller of Examinations by instructing a computer firm at her level to prepare the result of 10+2 Examination March-2006. This was in contravention of the orders issued by the office, dated 25.5.2006, which required her to declare the result with additional grace marks. She is alleged to have violated Regulation 5(h) of the Punjab School Education Employees Conduct Regulations, 1978, because she got the result prepared without additional grace marks. Later on the Board had to get the result prepared afresh with additional grace marks, which resulted in loss of `1,60,806/- to the Board. In the process the result was delayed and the reputation of the Board 32 suffered a set back. She is alleged to have sent leave application abruptly on 29.5.2006 at critical moment which was again an act of irresponsibility (P-4 at pages 54-55).
31. In the two show cause notices dated 23.2.2007 (P-5) and 25.4.2007 (P-7), the allegation is that she sent a communication to the audit that salary of 41 Clerks appointed by the office might not be ticked. Likewise, her comments on regularisation of appointments on the basis of Punjab Government notification, has also been referred to. Her explanation in the second show cause notice dated 25.4.2007 (P-7) has also been sought with regard to publication of her interview in the Punjabi 'Daily Ajit', alleging that she violated Regulation 12(2) of the Punjab School Education Board Employees Conduct Regulations, 1978.
32. It has also come on record that S. Avtar Singh, who was appointed as Controller of Examinations on deputation was re- called by order passed by the Government of Punjab on 25.4.2007 (P-8) and directing the Board to give temporary charge of the post to the petitioner. She submitted her joining report as Controller of Examinations on 27.4.2007 (P-9).
33. The issue concerning grace marks has been subject matter of controversy within the Board. Regulation 16(b) of the of the Punjab School Education Board Calendar, Volume-II, which has already been noticed in preceding para 5 above, concerns the award of grace marks in the Senior Secondary Examination. There was a 'Call Attention Notice' in the State Assembly where the attention of the Government was drawn towards the decision taken by the Board to grant 17 grace marks to the failed science students in +2 Class Examination in order to raise pass percentage of the 33 result of the Education Board. According to the 'Call Attention Notice', it reflected declining level of education standard in the State of Punjab, which caused widespread resentment in the general public. The notice further point out that the students so promoted with 17 grace marks would not be able to compete successfully on merit in the competitive examination and their future is likely to be blocked. The education system in the schools is heading towards ultimate collapse and the agency entrusted with the responsibility of ensuring fairness to conducting and supervising the examination in the State was facilitating the failed students to march over the edge of merit of the laborious candidates. Accordingly, the Minister concerned was asked to make a statement on the floor of the House. The then Education Minister alleged to have received report that for quite some time past at the instance of certain vested interests within and outside the Board including cheating mafia under the garb of academies assuming fancy names and styles (Class 9-fail-save-one-year-and-do-10th directly-type) had been artificially jacking up pass percentages by award of extra grace marks in addition to what was provided for in the relevant regulation of the Board.
34. Accordingly, a meeting was held on 23.12.2005 (21.12.2005?) by the then Education Minister which was attended by Prof. Sidhu-respondent No. 3 apart from others. The decision taken with respect to the performance of the Board Examination was that no grace marks would be allowed except the one provided in the regulation of the Board. In pursuance of the aforesaid decision, the Government issued orders vide Memo. No. 5/11/2004- 34 5 Ed.3, dated 28.12.2005, conveying the proceedings of the meeting held on 23.12.2005 (21.12.2005?) (P-1).
35. It is appropriate to mention that the aforesaid decision was binding on the Board because Section 21 of the Punjab School Education Board Act, 1969, was amended vide Amendment Act of 2005, to empower the State Government to call for any information and to exercise superintendence, direction and control over the Board and its officers. The Government has also been given the power to appoint a Committee to inquire into and report on any policy, administrative, financial or any other matter in the interest of school education and functioning of the Board. Therefore, there was no escape but to comply with the directions of the Government issued on 28.2.2005 (P-1). A perusal of para (xii) of the proceedings dated 21.12.2005 (P-1) would show that the Government has decided that no grace marks was to be allowed except the one provided under the regulations, namely, Regulation 16(b) of the Punjab School Education Board Calendar, Volume-II.
36. Even later on, on 29.9.2006 the Education Secretary, School Education, sent a letter seeking complete details of grace marks awarded by the Board in all subjects and the total number of students appearing in the Board Examinations during last 10 years. The information was also solicited about the names and the designation of authorities at whose level such decision is taken. The letter also reveals that how the Government has seriously taken the issue of award of grace marks. The petitioner has alleged in para 32(ii) that she explained to Prof Sidhu-respondent No. 3 in person twice on 25th and 26th of May, 2006 that the Education Minister has telephonically reiterated that grace marks except 35 specifically provided for in Regulation 16(b) alone are to be awarded and he had asked the Principal Secretary, School Education Board to thoroughly review the powers assumed by the Board Chairman subsequently by adding new provisions and put up the case for final decision of the Government. The petitioner is stated to have apprised Prof. Sidhu-respondent No. 3 that the directive issued by the Government has to be complied with as the Government has statutory power to exercise superintendence, direction and control over the Board and its officers. On 28.5.2006, the Education Minister again spoke to the petitioner on phone and directed that "tell the Chairman that till Government reviewed his powers to grant additional grace marks, takes a view of the matter, he should strictly comply with the decision taken by the Government earlier not to grant such marks". While sending the file second time to the Chairman, the petitioner personally conveyed to him the direction issued by the Education Minister. However, respondent No. 3 remained adamant on awarding additional three grace marks, which is contrary to the Regulations and in violation of the decision taken by the Government in the meeting dated 21.12.2005 and the act of the Chairman is also under scrutiny of the Government. Therefore, the substance of the charges levelled against the petitioner in the charge sheet itself would not be made out.
37. Further the charge sheet has sprung out of the mala fide of Prof. Sidhu-respondent No. 3 as the allegations levelled against him have remained uncontroverted. It has already been noticed in the preceding paras that if the allegations of mala fide are substantiated and not controverted by the party against whom such 36 allegations have been made then such allegations are to be regarded as proved. Moreover, no one else could controvert the allegations except the party concerned because these are within the personal knowledge of the respondent. Any affidavit filed by any other official of the Board would not be regarded as sufficient. As is revealed by perusing various paras of the writ petition, including 13 to 23, the allegations, which are within the personal knowledge of Prof. Sidhu-respondent No. 3, have been levelled which remained uncontroverted. In these circumstances we are left with no other option but to quash the impugned charge sheet, dated 23.2.2007 (P-4) and the show cause notices dated 23.2.2007 (P-5) and 25.4.2007 (P-7), issued to the petitioner.
38. As a sequel to the above discussion, this petition succeeds. Accordingly, the impugned charge sheet, dated 23.2.2007 (P-4) and the show cause notices dated 23.2.2007 (P-5) and 25.4.2007 (P-7), issued to the petitioner are hereby quashed.
(M.M. KUMAR) JUDGE (RITU BAHRI) BAHRI) May 27, 27, 2011 JUDGE Pkapoor