Punjab-Haryana High Court
Parvesh Kumari And Others vs Board Of School Education Haryana And ... on 12 March, 2012
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.1867 of 2012
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.1867 of 2012
Date of Decision: 12.03.2012
Parvesh Kumari and others ..... Petitioners
Versus
Board of School Education Haryana and others ..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. R.S. Sangwan, Advocate,
for the petitioners.
Mr. Partap Singh, Advocate,
for respondent Nos.1 and 2.
Ms. Kirti Singh, DAG, Haryana,
for respondent No.3.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
1. The six petitioners before the Court were disqualified from appearing in the second year examination of Diploma in Education for a period of one year occasioned by registration of unfair means cases with the Board of School Education, Haryana at Bhiwani, Haryana. The impugned order debarring the petitioners to appear for one year was passed on 27.04.2011. The paper in which the petitioners were apprehended for using unfair means was Paper Three Code (E-03). The petitioners were afforded opportunity of hearing on 20.06.2011 and was held guilty under Regulation 132 of the Regulations of the Board of using unfiar means. The petitioners' appeal for reconsideration of the decision of the Unfair Means Committee stands rejected. Such order has been placed at Annexure P-8 dated CWP No.1867 of 2012 -2- 27.09.2011. The Board of School Education Haryana has been constituted under the Board of School Education Act, 1969. Regulations have been framed by the Board. Regulation 132 deals with possession of incriminating material during examinations. The regulation reads as follows:-
"132. Possession of incriminating material:
If during an examination a candidate is found in possession of any material, which is relevant to the subject to the examination such as:-
(a) Papers, books or notes or any other objectionable material or
(b) Notes wirtten on any part of the clothes worn by the candidates or on handkerchief or on any part of his/her body, or tabloe or desk or board or
(c) Foot-rule and or instructions like set-squares like set-
squares, protractors, slide rules etc. with notes written on them, he/she shall be disqualified for one year/two semesters."
2. In the definition clause of the regulations, disqualification has been defined in Sub-section xiii which reads as follows "xiii) "Disqualification" for one year means cancellation of candidature for the examination in which the candidate is found guilty and debarring him from the next examination, if examination is held twice in a year."
3. The prayer in this petition filed under Articles 226/227 of the Constitution is for quashing the impugned order dated 07.07.2011 disqualifying the petitioners for one year in the second year examination of D.Ed and the consequential orders dated 16.08.2011 and 27.09.2011 in appeal upholding the decision of the unfair means committee. The second prayer is that the petitioners be permitted to appear in the April 2012 D.Ed. Examination in Paper Three (E-03) in which they were caught using unfair CWP No.1867 of 2012 -3- means and declare their results in this paper as 'compartment' and they should not be compelled to appear in the entire examination all over again including the rest of the papers in which they had appeared in April 2011 examination. On passing Paper Three (E-03) they may be declared pass in the D.Ed. Course. It is not disputed that the petitioners remained successful in the remaining papers of the April 2011 examination.
4. On notice of motion having been issued, the respondent-Board has put in appearance and has filed its reply. It is stated that an appeal lies to the Chairman of the Board under Regulation 128(a) which is a second appeal against the orders of the Secretary of the Board. Except petitioner Parvesh Kumari none of the petitioners have exhausted that remedy. It is inter alia contended by the Board that its rules and regulations make a distinction between disqualification for one paper and disqualification of one year. The petitioners were disqualified for one year according to the Board for the entire examination under Regulation 132; that disqualification for a particular paper falls under Regulation 135. Regulation 135 is cited in the written statement and reads as follows:-
"If during an examination, a candidate is found talking to another candidate or any person inside or outside the examination hall during the examination hours, without the permission of a member of the Supervisory Staff, before he/she has handed over his/her answerbook, his/her answerbook for that Particular paper shall be cancelled."
5. In view of these contentions, dismissal of the writ petition is prayed for with the insistence that the petitioners would have to repeat all papers for the examination April 2012.
6. I have heard learned counsel for the parties at length. CWP No.1867 of 2012 -4-
7. Mr. R.S. Sangwan, learned counsel for the petitioners has restricted his arguments on the second issue raised by him. He has given up his claim against the UMC orders on merits. Therefore, he does not assail the punishment orders but says that since the period of disqualification is over, the petitioners can be tested only for Paper Three (E-03) in which the UMC case was made. It is not disputed that in the remaining papers, the petitioners have remained successful.
8. There can be no doubt that the impugned action against the petitioners has been taken under Regulation 132 as apparent from the orders placed on the record of this case. Regulation 132 confers power on the Board to disqualify a candidate for one year or two semesters if "during an examination a candidate is found in possession" of any incriminating material which is relevant to the subject of the examination. In the present case, the subject was Paper Three (E-03). Given that the petitioners cheated in Paper Three (E-03) they could be disqualified for one year. What does disqualification for one year mean has been defined to say cancellation of candidature for the examination in which the candidate is found guilty. The candidates were found guilty only in Paper Three (E-03), as they did not cheat in all the papers in the examination. They were permitted to appear for the remaining papers and had already appeared in two papers prior to Paper Three (E-03). They passed those subjects. The word "examination" has not been defined to mean in one or more subjects. The rule making authority has not used the words "whole" or "entire" examination. A conjoint reading of Regulation 132 and Clause (xiii) does not enlighten me as to whether the punishment is to run for the entire length of the CWP No.1867 of 2012 -5- examination or for the paper in question. The guilt of the petitioners can be attributed only to Paper Three (E-03). Paper Three (E-03) is part of the examination. The petitioners were not found guilty in any other paper. Even if one applies the principle of strict construction, we do not seem to be close enough to the interpretation placed by Mr. Partap Singh, learned counsel appearing for the Board on Regulation 132 read with (xiii). There is an apparent grey area. An ambiguity. To resolve this ambiguity, I would apply the safe rule that an interpretation should be given to the cumulative reading of Regulation 132, 135 and Sub Regulation (xiii) of the definition section which would be in favour of the petitioners. The benefit of such interpretation must be handed over to the petitioners. The petitioners would now be called upon to appear in Paper Three (E-03) and in case, any of them have failed to clear any other subject previously, they would be examined in those subjects as well in the Examination April 2012. The petitioners cannot be compelled to appear in the entire examination all over again.
9. Consequently, this writ is allowed and the above directions are issued for the reasons stated above.
10. Ordered accordingly.
(RAJIV NARAIN RAINA) 12.03.2012 JUDGE manju