Jammu & Kashmir High Court - Srinagar Bench
Chairman, Board Of School Education, ... vs Tabasum Rizvi on 22 July, 2015
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPA No. 195/2013
CMP No. 317/2013
Date of Order: 22.07.2015
1. Chairman, Board of School Education, Srinagar.
2. Secretary, Board of School Education, Srinagar.
......Appellants
Versus
1. Tabasum Rizvi ( Aged 16 years Approx.) d/o Syed Manzoor Rizvi
r/o Syed Pora Sopore, Kashmir
through her father Syed Manzoor Rizvi s/o Syed Muzaffar Rizvi r/o
Syed Pora Sopore Kashmir.
2. State of J&K through
Chief Secretary, J&K Government, Srinagar/Jammu.
3. Commissioner/Secretary to Govt. Education Department,
Civil Secretariat Srinagar/Jammu.
.....Respondents
Coram:
Hon'ble Mr. Justice N. Paul Vasanthakumar, Chief Justice Hon'ble Mr. Justice Ali Mohammad Magrey, Judge Appearing counsel:
For the Appellant(s) : Mr. J. A. Kawoosa, Advocate. For the Respondent(s) :
N. Paul Vasanthakumar, CJ
1. This appeal is filed by the Chairman and the Secretary of the Board of School Education, Srinagar, challenging the order of the learned Single Judge made in OWP no.
167/2013 dated 16.09.2013 whereby the writ petition filed by the respondent was disposed of with a direction to pay an amount of Rs. 2 lacs as compensation to the 2 respondent by the appellants within a period of four weeks.
2. Brief facts necessary for disposal of this appeal are that the respondent ( minor) appeared in Matriculation Examination conducted by the appellant-Board in the month of November, 2011 under Roll No.477497 as a private candidate. The result of the examination was withheld on the basis of a note submitted by the Superintendent of the Examination Centre stating as "
U.F.M" ( unfair means). The same was notified in the official Gazettee dated 30.03.2012. The father of the respondent approached the appellants and requested to declare the result of the respondent and no action being taken, he approached the concerned Superintendent who issued a certificate on 02.04.2012, stating that he has not put any note on the mathematics paper written by the respondent stating that she had indulged in unfair means. As the grave mistake was committed by the appellants resulting in unnecessary harassment to the respondent and her father and due to the depression the respondent tried to commit suicide and at the timely intervention of family members, the life of the respondent was saved. The father of the respondent filed writ petition, OWP No. 438/2012 before this Court praying for direction to declare 3 the result of the respondent and allow her to carry forward her further studies and at that time, an assurance was given by the appellants to look into the grievance. The said writ petition was therefore withdrawn and respondent approached the appellants along with the withdrawal order and even thereafter the grievance was not considered. Due to the said willful negligent act of the appellant the respondent was put to mental agony, loss of one precious academic year. The respondent again approached this Court by filing the above writ petition with the following prayer:-
"(A) Mandamus commanding the respondents 3 and 4 to declare the results of daughter of petitioner forthwith so that the educational career of petitioner's daughter is saved. B) Mandamus commanding the respondents to take steps to allow the daughter of petitioner to go for further studies. C) Mandamus commanding the respondents to pay suitable compensation to the petitioner for having wasted one precious educational year of the daughter of petitioner. D) Any other writ, order, command, direction or relief, which has not been specifically prayed, but to which petitioner is found entitled to, may also be passed favouring his and against respondents."
3. The writ petition was resisted by the appellants by filing their objections, stating that the answer script against Roll No. 477497, script No. 133188 of Secondary School Examination (Class 10th), Session 2011 Annual, received from the Code Officer was alleged to be a case of misconduct as such the examination was cancelled by statutory unfair means Committee. The writ petitioner did 4 not approach the appellants for review or reconsideration of her case instead she filed the writ petition before this Court which was withdrawn with liberty to file fresh one on cause available. Thereafter on 21.11.2012 the writ petitioner submitted a representation stating that she has not resorted to unfair means and on consideration of her representation it was found that the Code Officer has committed the mistake. On further enquiry it was revealed that the Code Officer has booked the writ petitioner as an unfair means case inadvertently and during the enquiry the Code Officer confessed and conceded the said bonafide mistake during the course of his duties. After the enquiry was over the result of the writ petitioner was declared on 03.04.2013 and the erring officer was debarred from giving all future Board assignments. In effect the appellants are blaming the writ petitioner for the delay, while admitting the mistake committed by the Code Officer, who is an agent of the appellants. The learned Single Judge considered the objections and allowed the writ petition with a direction to the appellants to pay an amount of Rs. 2 lacs as compensation to the writ petitioner, stating that award of compensation would not only compensate the writ petitioner but also act as deterrent in future for the authorities of the Board in 5 performance of their duties in a manner which would not affect the future of any candidate.
4. The said order of the learned Single Judge is challenged in this appeal by contending that the unfair means case reported against the writ petitioner was a bonafide mistake committed by the Code Officer and the writ petitioner could have approached the appellants and there was no malice or conscious abuse and therefore the award of compensation is not justified.
5. Heard Mr. J. A. Kawoosa, learned counsel for the appellants, who argued that deficiency in service cannot be treated against the appellants as it is not a service provider under the Consumer Protection Act. He has also relied on certain decisions with regard to the jurisdiction of the Consumer Disputes Tribunals in awarding the compensation. The learned counsel, however, was unable to dispute the fact that there was mistake on the part of the Code Officer due to which the writ petitioner's examination was cancelled as if she indulged in unfair means which was notified in the Gazettee and in sequence thereof the writ petitioner could not undergo higher studies and lost one precious year.
6. We have gone through the materials placed before us and applied our mind meticulously.
6
7. It is not in dispute that the writ petitioner (minor) appeared as a private candidate in matriculation examination conducted by the appellants in November, 2011 under Roll No. 477497 and that she did not indulge in unfair means. It is also not in dispute that the Code Officer committed mistake and booked the writ petitioner as an unfair means case and her examination was cancelled, which was also notified in the official Gazettee dated 30.03.2012 at page 312. The father of the writ petitioner thereafter approached the appellants and requested to declare the result of the writ petitioner as she did not indulge in unfair means, which request was not considered by the appellants.
8. The writ petitioner was compelled to approach this Court by filing OWP no. 438/2012 seeking for directions to the appellants to declare her result. At least at that time appellants could have verified the facts and rectified their mistake. Though assurance was given based on which the writ petition was withdrawn on 06.12.2012, the grievance of the writ petitioner was not considered and ultimately the result was declared only on 03.04.2013. Thus it is evident that the examination of the writ petitioner appeared in November, 2011 was wrongly cancelled and inspite approaching this Court in the year 7 2012 the result was declared as passed only on 03.04.2013 i.e. after delay of more than one year and four months. It is not in dispute that academic year is more important to a student particularly those who have passed the examination. By the conduct of the appellants the writ petitioner lost one precious academic year. She was also put in mental stress due to which she also attempted to commit suicide which was prevented by the parents and relatives which goes to show that not only the writ petitioner was put to mental stress but her parents were also put to mental strain. The reputation of the writ petitioner was also damaged due to notification published in the Gazettee stating that she has indulged in unfair means in the public examination.
9. The conduct of public examination, evaluation, declaration of results etc. are serious matters and the examination Board cannot commit any mistake as the mistake, if any, committed, will affect the candidates and will cause serious prejudice to the future of the students. It is easier on the part of the appellants to say that mistake was bonafide and the Code Officer was debarred from giving all future Board assignments, that will not absolve the appellants to pay compensation to the writ petitioner as they are liable to pay compensation for the 8 mistake committed by the Code Officer who is none other than the agent/Officer appointed by the appellants to conduct the examination. Hence the appellants are vicarious liable to pay compensation to the respondent on the principle that for the mistake committed by the agent the principal is liable.
10. In such circumstances the appellants cannot escape from the liability to pay the compensation as contended by the learned counsel for the appellants. The writ petitioner has not approached the Consumer Forum alleging deficiency of service on the part of the appellant and claimed compensation. The decisions relied on by the learned counsel for the appellants are in respect of the maintainability of the complaint before the Consume Forum which have no application to the facts of this case.
11. It is accepted position of law that ubi jus ibi remedium principle must be followed and if there is a just cause established, the Courts are bound to give remedy to the litigant in an appropriate manner. Accountability of the officers who are vested with statutory duty to perform must be fixed and if anyone is put to inconvenience by the sheer negligence with intention or otherwise the same is required to be compensated as declared by Hon'ble the Supreme Court in the decision reported in (2011) 9 SCC 354 9 ( Delhi Airtech Services Private Limited and anr v. State of Uttar Pradesh and anr). In paragraph 215 it is held thus:-
"215. The concept of public accountability and performance of functions takes in its ambit, proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State or its instrumentalities. In Centre for Public Interest Litigation v. Union of India, this Court declared the dictum that State actions causing loss are actionable under public law. This is a result of innovation, a new tool with the courts which are the protectors of civil liberties of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also not lack bona fides. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable for both their inaction an irresponsible actions. If what ought to have been done is not done, responsibility should be fixed on the erring officers; then alone, the real public purpose of an answerable administration would be satisfied."
12. In the decision reported in AIR 2012 SC 3396 ( Asha v. Pt. B. D. Sharma University of Health Sciences and ors) , Hon'ble the Supreme Court has held that if a meritorious candidate is denied admission in a MBBS course and due to the expiry of the last date fixed for admission, such student cannot be given admission, compensation can be ordered for non-grant of admission for mental agony, expenses of litigation and the valuable time of life that stands wasted for failure on the part of the respondents.
13. The Constitutional Courts are empowered to award compensation if the facts are not disputed. In AIR 2000 SC 10 1603 (Tamil Nadu Electricity Board v. Sumathi and ors) , Hon'ble the Supreme Court held that High Court under Article 226 of the Constitution can exercise the jurisdiction against a body which discharges public duty.
14. Considering the facts of this case and having regard to the fact that the writ petitioner's examination was cancelled by alleging that she has indulged in unfair means, which was found not true by the appellants themselves and the cancellation of the examination having been notified in the official Gazettee which has tarnished her image as well as her parents due to which the writ petitioner attempted to commit suicide which was prevented by timely intervention of her parents and relatives and the fact that the writ petitioner has lost one precious year, the amount of Rs. 2 lacs awarded by the learned Single Judge is not excess on the facts and circumstances of this case.
15. There is no merit in the appeal which is dismissed. The appellants are directed to pay the compensation amount as awarded by the learned Single Judge to the writ petitioner within a period of two weeks from the date of receipt of this order, failing which the appellants are bound to pay 9% interest on the amount awarded from the date of the order of the learned Single Judge till the 11 amount is actually paid and if the said amount of interest, if any paid, the same shall be recovered from the officer who is found responsible for delaying the payment to the writ petitioner.
(Ali Mohammad Magrey) (N. Paul Vasanthakumar)
Judge Chief Justice
SRINAGAR
22. 07.2015
Anil Raina, Secy