Gujarat High Court
Patel vs Director on 19 February, 2010
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
Print
SCA/3471/2004 20/ 23 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3471 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PATEL
HITEABEN RAMANBHAI - Petitioner(s)
Versus
DIRECTOR
& 4 - Respondent(s)
=========================================================
Appearance
:
MS
PREETI S PARMAR for
Petitioner(s) : 1,MR SV PARMAR for Petitioner(s) : 1,
MR HH
PARIKH, AGP for Respondent(s) : 1,4 - 5.
RULE SERVED for
Respondent(s) : 1 - 3.
MR AD OZA for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 19-22/02/2010
ORAL
JUDGMENT
The short facts of the case appear to be that the petitioner completed HSC Examinations in General Stream in the month of April, 1999 and secured 64% of the marks. Thereafter, as per the petitioner, the certificate of HSC General Stream was surrendered and she got admission in another school for vocational stream. It is the case of the petitioner that thereafter she appeared in the HSC vocational stream in the month of May 2001 and passed the same with 92.93% marks. The petitioner thereafter based on the result of the HSC vocational stream got admission in PTC in July, 2001. When she was prosecuting study of PTC, just before the examination of First Year, some inquiry was initiated as to whether she has surrendered the original mark-sheet of HSC General Stream or not. In the process of inquiry, the petitioner was also prohibited from appearing at the examination, but the same was permitted by this Court in the proceedings initiated by the petitioner. It appears that thereafter as the order was without giving any opportunity of hearing, a show-cause notice was given and it is the case of the petitioner that she further prosecuted the study of Second Year of PTC, but in the meantime, the impugned order came to be passed on 7.12.2002, whereby the result of the petitioner of HSC vocational stream was cancelled. It appears that thereafter, based on the said order of the Examination Committee of Gujarat Secondary and Higher Secondary Board dated 7.12.2004 for cancelling the result of HSC vocational stream, the admission of the petitioner in PTC was also cancelled vide order dated 16.1.2003 pending the petition. Under these circumstances, the present petition.
Heard Mr.Parmar, learned Counsel appearing for the petitioner, Mr.Raval, learned Counsel appearing for the respondent Board and Mr.Parikh, learned AGP for the State Authorities.
It appears that it is an admitted position that the petitioner has appeared in the examination of 12th Standard HSC Vocational Stream and she has passed with marks above 90%. It is not the case of the respondent Board or the State authorities that there was any manipulation at the examination or that she did not genuinely score the marks at the examination of HSC. Therefore, on the aspects of her merit at the examination having successfully passed the HSC vocational stream, if there is no dispute, the matter is required to be considered keeping in view the said peculiar circumstance. The another peculiar circumstance, in the present case, is that the Board or the Examination Authority, at no point of time, raised the objection to the appearance of the petitioner at the examination on the ground that she was not fulfilling the eligible criteria for appearing at the examination of HSC vocational stream or the admission was wrongly given or that some documents were not genuine. The fact remains that on account of no action taken by the Examination Authority or the Board, as the case may be, the petitioner prosecuted the study and has successfully passed the examinations of HSC vocational stream with the marks above 90%. The third aspect in the present case is that when the petitioner got admission in PTC, at that stage also no action was taken and it is only at the stage when the petitioner was to appear at the examination of First Year of PTC, the action was initiated by the Board and based on the same, the petitioner was prohibited from appearing at the examinations of First Year of PTC, but in view of the orders passed by this Court in the other proceedings, the petitioner had appeared at the examinations and it is the case of the petitioner that the said First Year PTC examinations were successfully cleared, but before she could appear in the Second Year of PTC, the action is concluded against her.
On behalf of the respondent Board, mainly three contentions are raised; one is that the mark-sheet of HSC General Stream was not surrendered or deposited. On the said aspect, the contention of the petitioner is that the mark-sheet was deposited, but the fact remains that the School has not been able to produce the proof for surrendering of the mark-sheet. Had it been a case where the petitioner, based on the mark-sheet of HSC General Stream, taken any admission for any other course or had it been the case, where the petitioner took any benefit based on the said mark-sheet of HSC General Stream, it might stand on a different footing. No such circumstances exist in the present case. The essential purpose of surrendering of the mark-sheet is to see that the student concerned may not claim any benefit based on the mark-sheet, which is to be surrendered and the same is not to be given effect in view of the admission once again taken in the different stream of HSC, may be vocational stream. It appears to the Court that the Board could have considered the matter for getting the deposit or surrendering of the certified copy of the mark-sheet, when nothing came on record that undue benefit was taken or the said mark-sheet of HSC General Stream was made use by the petitioner for getting admission in any other course.
The second contention raised on behalf of the Board is that at the time when the petitioner got admission in the School for prosecuting study of 12th HSC vocational, the School Leaving Certificate, which was submitted was not genuine. The learned Counsel for the respondent Board has not been able to demonstrate before the Court that whether such School Leaving Certificate, which could have been said as genuine as per him or the certificate, which was produced, would have vitiated the admission process or not in HSC vocational stream. As such, the School Leaving Certificate would have the relevance to show the details of the student and more particularly for leaving the school, so as to see that one may not prosecute simultaneously in two schools at a time. If any date included in such certificate, did not vitiate the admission of the petitioner in HSC vocational stream, it may not assume much importance, more particularly when the admission was already granted to the petitioner and the petitioner successfully passed the examination of HSC vocational stream with good merit. Had it been the case where the Board prior to her appearance at the examination of vocational stream took the action based on her eligibility or based on non-genuine documents of School Leaving Certificate, the matter may attract different consideration, but once admission was granted by the School and approved by the Board, and not only that, the petitioner was permitted to appear in the examination, but when the petitioner additionally passed the examinations and the result was declared, if the details of School Leaving Certificate had not vitiated the admission to the petitioner, such could not be considered as a valid ground to impose penalty to the extent of cancellation of the whole result of HSC vocational stream, which the petitioner passed with good merit. Such aspects could have been leniently viewed by the Board, taking into consideration the fact that the Board itself failed to take action well in time i.e. prior to her appearance at the examination and the aspect that the Board itself had approved the admission by permitting her to appear at the examination. It appears that the Board could have adopted for a lesser punishment for such irregularities, which had ultimately no bearing to the proved merit of the petitioner at HSC vocational stream.
The third contention raised on behalf of the Board is that the petitioner, in fact, had not studied 11th Standard of HSC vocational and she only studied 12th of HSC vocational. The basis of the contention is the inquiry initiated and held, in which the School also could not satisfactorily show that in the examination of 11th Standard HSC vocational the petitioner had appeared. It was also contended that in the attendance register being maintained by the School, everywhere the name of the petitioner was added at the last and in majority, absence was noted, which may not fulfill the requisite presence too. Therefore, the learned Counsel for the respondent Board submitted that if the petitioner did not study 11th Standard HSC vocational stream, the petitioner would not have been eligible to study for 12th Standard HSC vocational and consequently the Board was justified in cancelling the result of HSC vocational stream of the petitioner.
Prima facie the said contention may appear to be with merit, but upon the detailed scrutiny, it appears that it holds no substance. The reason being that absence in attending the School may be at the 11th Standard does not completely bar the appearance of any student at the examination. Such absence can be condoned or is with the enabling power with the School Authorities or other competent authorities, as the case may be, to condone the same and to treat the student as eligible to appear at the examination. Merely because the petitioner did not mark the presence could not be said to be the sole consideration to record a final conclusion that the petitioner did not study at all. Further, whatever was the record of the School the important aspect is that at the time when the examination form was filled up by the petitioner, the School Authorities as well as the Board, both, found her eligible to appear at the examination of 12th HSC vocational stream and based on such decision of eligibility the petitioner did appear at the examination and has also cleared the examinations successfully. Therefore, once the eligibility was found for appearance at the examination, in normal circumstances, it should not be upset, so as to create a situation of cancelling a successful result of any student having proved the merit at the examination, with no allegation of any manipulation at the examination. Apart from the above, it is true that the requirement may be of marking presence or attending of the class, but it is the ultimate merit or the performance shown at the examination, the result of HSC vocational stream has been declared. When the student has shown a good, rather an extraordinary merit at the examination conducted by the Board and when there is no allegation of any manipulation at the examination, it would be unreasonable to take an extreme view of cancelling the result of the examination by nullifying the merit of the student, who has put up the labour at the examination and the merit with above 90% of marks proved at the said examination.
Under these circumstances, it appears to the Court that the fact that the examination was conducted and the petitioner stood by merit having passed at the examination with a very good marks of above 90%, it was not expected for the Board to take an extreme step for cancelling the result, more particularly when the Board itself had found the petitioner eligible to appear at the examination and the petitioner having appeared at the examination successfully passed and stood by a very extraordinary merit.
It may be that the Board did not take any action, because it was not brought to its notice, but it was required for the Board to take into consideration that the School as well as the Board both had permitted the petitioner to appear at the examination and there was no allegation of manipulation at the examination and the petitioner has stood by merit at the examination. If there was delay on the part of the Board to take action, may be on account of the fact that it was not known to it, but if, in the meantime, the rights have accrued further to the extent of creating irreversible situation, lenient view was required to be taken by the Board, even if it was found that there was a case for imposition of punishment. It is not that in every case whenever there is any breach, every breach will attract the maximum penalty or the punishment. The principles of proportionality of the punishment in exercise of the administrative power or quasi judicial power is by now well known. It would be required for the authority to consider the question proportionality of the punishment, if the breach is trivial or had no bearing to the ultimate result at the examination and when the authority itself is a party in making delay for taking action. If the situation is so created in irreversible manner, resulting into adversely affecting the career of the student, the Board could have examined the aspect as locoparentis while imposing punishment or while taking ultimate decision. It appears that the Board, while arriving at the decision of cancelling the result lost sight of the important aspect that at one point of time, the Board itself had found the petitioner eligible to appear at the examination, the fact that the petitioner had actually appeared at the examination and the fact that the petitioner has passed the examination with meritorious marks. Such circumstances were germane to the exercise of the power for imposing punishment by the Examination Committee of the Board, if treated as administrative or even if it is treated as quasi judicial power. It appears that the Board has missed to consider such aspect, but has not addressed itself as to whether the lenient view is to be taken or the other punishment would meet with the purpose to be achieved of the procedure to be followed or not.
At this stage, it would be profitable to refer to two decisions of this Court; one in the case of Shirin S. Qureshi v. National Institute of Fashion Technology, reported at 2004(1) GLH, 343.
In the said case, based on the certificate, which was subsequently cancelled, the admission was granted for prosecuting the study and not only that, but the student concerned had prosecuted the study by completing certain academic year and the question arose for consideration by this Court as to whether the admission should be allowed to be cancelled by allowing the seat to lapse and the study already undergone by the student to go in vain or not. This Court observed at paragraph 7 as under:-
7. But in the present case, three peculiar and irreversible situations have arisen on account of the gap of time. One is that though the certificate which was produced was of "SEBC" category, the college authorities have also not verified the application form with the certificate itself at the time of admission and not only that but thereafter also until the course is completed and even the examinations are over, except viva voce, no steps are taken for cancellation of the examination by the respondent-college. The second is that the petitioner has undergone the studies for a period of about two years and the process of study is completed and it is only at the time of viva voce examination, the admission is cancelled. The third is that, even if this Court is to uphold the decision of the authority of cancelling the admission, the same is not to result into making room for benefitting the "SC" candidate, who otherwise, would have been entitled to admission because even if the admission is cancelled for the seat of 2001, now in the year 2003 no student can be admitted on such seat nor a degree can be conferred on such "SC"
candidate. The aforesaid is coupled with one additional aspect that the petitioner is otherwise belonging to "SEBC" category which is also Socially and Economically Backward Class identified by the State Government and it is not the case of the respondent authority that any student belonging to "SC" category had made any complaint when they did not get the admission on reserved quota of S.C. In view of the aforesaid peculiar facts and circumstances, I find that if the impugned order for cancellation of the admission is maintained it may result into wastage of public time and money of not only the student but also of the respondent-institution because when any student is admitted in any academic course, which is, in the present case, a professional course of Fashion Designing, even if the student pays the fees, the institution itself is also required to incur expenses for maintenance of the college. If the cancellation of admission is maintained it may also result into wastage of time and money, in asmuchas, time consumed for undergoing course for two years cannot be restored back nor such time can be allotted to any person who otherwise would have been entitled for. As such, on account of delay caused in taking action by the respondent-authority, an irreversible situation is created which if allowed to be maintained, would result into damage to all and benefit to none. I am also inclined to make the aforesaid observations in view of the decision in the case of Harphool Singh (supra) as well as another decision of the Delhi High Court in the case of INDER PRAKASH vs. DEPUTY COMMISSIONER ( AIR 1979 DELHI 87), which is also considered by Rajasthan High Court while taking decision in the case of Harphool Singh (supra).
This Court further observed at paragraph 8, relevant of which are as under:-
8. ... If such misrepresentations are leniently viewed the consequences would be that a student may be tempted to undertake such type of wrong disclosure misrepresentation while securing admission in any academic course. Therefore, I find that even if this Court is to ultimately hold that the student should be allowed to appear in the final viva examination since she has already completed the course and on account of delay an irreversible situation has arisen, this Court should impose penalty upon the student so as to have deterrent effect of such conduct on the part of the students. If such penalty is not imposed, it may encourage such false misrepresentation on the part of the students and secondly may result into procuring the benefit without suffering any penalty whatsoever.
Thereafter, the penalty was imposed of Rs.50,000/- and upon deposit of the penalty and written apology submitted to the effect that such shall not be repeated in future, the student concerned was allowed to appear in viva voce examination and the result was ordered to be declared.
It may also be recorded that in the case of Julaha (Ansari) Safiullah Jamaluddin v. State of Gujarat & Ors., reported at 2008(4) GLR, 3001 similar question once again came up for consideration of the cancellation of the admission to PTC at the later stage after the student concerned prosecuted the study on the ground that the certificate of reservation was not genuine or was cancelled at the later stage. This Court, inter alia, observed at paragraph 13 as under:-
13.It is true that in normal circumstances, if the decision for cancellation of the certificate is not interfered with by this Court, the consequence may arise for leaving the party to face the adverse circumstances or the consequences, as the case may be.
However, in view of the aforesaid peculiar facts and circumstances of the case and the situation narrated hereinabove, if the admission granted to the petitioner on the reserved category based on the certificate, which is subsequently cancelled, is declared as illegal, no useful purpose would be served, because the seat has already been utilized and such benefit of the reserved category now cannot be transferred or allocated to any other student, who otherwise may be legitimately entitled for the benefit.
Thereafter the observations made by this Court in the case of Shirin S. Qureshi v. National Institute of Fashion Technology (supra) were extracted and after taking into consideration another decision of the Apex Court in case of R. Vishwanatha Pillai v. State of Kerala and Ors. , reported in 2004(2) SCC, 105 and more particularly the observations made at paragraph 28, it was found by this Court that the result of the petitioner can be allowed to be declared with the clarification that the petitioner shall not be treated as OBC Category in future, either for obtaining service or for any other benefits flowing from the caste certificate obtained by him, since his caste certificate has been ordered to be cancelled and the petitioner shall be treated as belonging to general category for all purpose. But in that case also, the Court did impose penalty upon the petitioner therein of Rs.20,000/- and the condition was also provided for not to use the certificate in future, leaving the liberty to the petitioner to approach before the Civil Court for appropriate declaration.
If the facts of the present case with the observations made herein above by this Court on the aspects of exercise of power by the Board is considered, it appears to the Court that the Board having not taken into consideration the aspects of delay resulting into an irreversible situation and having not taken into consideration the aspects of non-availability of the seats of PTC to any other student whatsoever, it was required for the Board to further proceed on the aspects of proportionality of the punishment. The matter could have been relegated to the Board once again for considering the said aspects, keeping in view the observations made in this judgement read with the above two judgements of this Court, however, it appears to the Court that the study of the petitioner has been disrupted since 2002. Therefore, if appropriate penalty is imposed upon the petitioner and upon payment of such penalty the petitioner can be permitted to prosecute the study based on the HSC vocational stream, with the prohibitory order to the petitioner not to use the certificate of HSC General Stream in future for all time to come, the same would meet with the ends of justice.
In view of the aforesaid, the impugned decision of the Board and of the respondent authorities for cancelling the admission in PTC based on the decision of the Board is modified to the effect that the petitioner :-
(i) shall surrender either the original or the certified copy of the mark-sheet of HSC General Stream within a period of four weeks from today; OR if the petitioner makes the application to the respondent Board with appropriate fees within 15 days from today, the Board from its own record, shall get copy of the said result of HSC General Stream and treat it as surrendered and it will be open to the Board to treat the result of HSC General Stream of the petitioner as cancelled.
(ii) shall not utilize, in any manner whatsoever, the result of HSC General Stream for further prosecuting studies in future or for getting employment in any organization based on such certificate or qualification.
(iii) shall pay a penalty of Rs.20,000/- (Rupees twenty thousand only) to the respondent Board within a period of two months from today.
Upon compliance to the aforesaid directions, the result of HSC vocational stream of the petitioner shall stand restored and consequently the order of cancelling the admission of the petitioner in PTC based on the order of the Board shall also stand set aside. Consequently, the petitioner shall be required to prosecute the study further from the stage where it was stopped and after undergoing the necessary formalities for prosecuting the studies further i.e., payment of fees, examination fees, etc., for appearance at the second year of PTC Examination provided the requisite presence is satisfied. If the presence is not completed, the petitioner would be required to study at the second year of PTC for completing the requisite presence. The respondent No.5 shall take suitable steps for ensuring the compliance of the present order.
The petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.
19-22/2/2010 (Jayant
Patel, J.)
vinod
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