Bombay High Court
Vaishnavi Sandeep Maniyar vs Central Board Of Sec. Edu., A National ... on 15 June, 2018
Author: Z.A. Haq
Bench: B.P. Dharmadhikari, Z.A.Haq
Judgment 1 wp2842.2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2842/2018
Vaishnavi Sandeep Maniyar,
Age 18 years, Occu. Student,
C/o Sandeep Maniyar,
R/o 119, Wardhman Nagar,
Near Radha Krishna Mandir,
Nagpur- 440 008
.... PETITIONER
// VERSUS //
1] The Central Board of Secondary Education,
National Eligibility Cum Entrance Test Unit,
Shiksha Kendra, 2, Community Centre,
Preet Vihar, Delhi- 110 092,
Through its Secretary
1a] The District Collector,
Nagpur Collectorate,
Nagpur
Respondent no. 1a added as per Court's
Order dated 25/05/2018.
2] Distt. Coordination for NEET Exam 2018,
The District Collector/Distt. Magistrate,
Nagpur Collectorate, Nagpur
Respondent no. 2 deleted as per Court's
order dated 22/05/2018
3] Adarsh Sanskar Vidyalaya,
Centre in charge
For Centre Examination No. 508501
NEET UG-2018,
Hudkeshwar Police Station, Pipla Road,
Nagpur 440 037
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Judgment 2 wp2842.2018.odt
4] Jayshree Shailesh Joge,
167, New Om Nagar,
Hudkeshwar,
Nagpur 440 037
Respondent no. 4 added as party as per Court's
Order dated 22/05/2018
.... RESPONDENT(S)
___________________________________________________________________
Shri F.T. Mirza, Adv with Ms. M. Chandurkar, Adv for the petitioner
Shri C.S. Kaptan, Senior Advocate a/b.
Shri P.S.Chauhan, Advocate for respondent no. 1
Shri N.R. Patil, AGP for the respondent no. 1a
Shri A.S. Kilor, Advocate for the respondent no. 3
___________________________________________________________________
CORAM : B.P. DHARMADHIKARI AND
Z.A.HAQ, JJ.
DATED : 12/06/2018
Date of Reserving for judgment :- 11/06/2018
Date of Pronouncement of judgment:-15/06/2018
ORAL JUDGMENT : (PER Z.A. HAQ, J.)
1] Heard. 2] RULE. 3] Considering the nature of controversy and as the advocates
appearing for the respective parties submit that the pleadings are complete, the petition is taken up for final hearing.
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Judgment 3 wp2842.2018.odt 4] The petitioner appeared for NEET UG-2018 examination held
on 06/05/2018 from 10:00 am to 1:00 pm. The petitioner claims that though the time of examination started at 10:00 am and the candidates were entitled to start writing the answer papers from 10:00 am, the respondent no. 4/Invigilator supervising class room no. 39 where the petitioner was alloted the seat, had not permitted the candidates in that room (about 24 in number) to start writing the answer papers from 10:00 am and those 24 candidates of class room no. 39 were permitted to start writing the answer papers at about 10:30 am. According to the petitioner, as the examination was of three hours, she carried impression that the candidates in class room no. 39 (including the petitioner) would be given time till 1:30 pm to complete writing of the answer papers however, the respondent no. 4/Invigilator had asked the candidates of class room no. 39 to stop writing at 1:00 pm, and the answer sheets were taken.
The petitioner claims that as she lost 30 precious minutes, the respondent no. 1/Board be directed to conduct an enquiry on the complaint of the petitioner that the candidates of class room no. 39 are not given three hours time to write the papers. The petitioner has further prayed that the respondent no. 1/Board be directed to grant appropriate proportionate marks to the petitioner. Alternatively, it is prayed that the respondent no. 1/Board be directed to conduct re-examination of the petitioner. ::: Uploaded on - 15/06/2018 ::: Downloaded on - 16/06/2018 01:38:34 :::
Judgment 4 wp2842.2018.odt 5] The petition was circulated during Summer 2018 Vacations. The
learned Vacation Judge passed an order on 08/05/2018 directing issuance of notice making it returnable on 18/05/2018. On 18/05/2018, the writ petition was adjourned for 22/05/2018. On 22/05/2018, oral request made on behalf of the petitioner to implead District Collector, Nagpur (District Co- ordinator for NEET UG-2018 Exam) was granted and the writ petition was adjourned for 25/05/2018. The petition was listed on 25/05/2018 and all the respondents were represented by their advocates. On 25/05/2018, one of us (Z.A.Haq, J.) was the Vacation Judge. Looking to the nature of controversy, it transpired that an enquiry on the allegations made by the petitioner was necessary. The learned Senior Advocate representing the respondent no. 1/Board expressed inability of the respondent no. 1/Board to conduct an enquiry on the ground that work of finalizing and declaring of result of HSSC was going on.
Considering the submissions made on behalf of the petitioner and on behalf of the respondents, an order was passed on 25/05/2018 directing that the District Collector/Additional Collector/Deputy Collector shall conduct an enquiry and shall ascertain whether any other candidate who appeared for NEET UG-2018 examination at the respondent no. 3/School (Center) and was in class room no. 39, had any complaint similar to that of the petitioner. To facilitate the enquiry, the respondent no. 1/Board was directed to supply to the District Collector, Nagpur the list of 24 candidates who were in class room no. 39 at the respondent no. 3/School ::: Uploaded on - 15/06/2018 ::: Downloaded on - 16/06/2018 01:38:34 ::: Judgment 5 wp2842.2018.odt (Center). The respondent no. 1/Board was directed to supply the contact numbers of the 24 candidates who were alloted seats in class room no. 39. The authority conducting the enquiry was directed to submit report to the Court till 01/06/2018.
Accordingly, the enquiry is conducted by the Sub-Divisional Officer, Nagpur City and report dated 31/05/2018 is submitted to the Court. The copies of the enquiry report are given to the advocates for the respective parties. None of the respondent has disputed the enquiry report submitted by the Sub-Divisional Officer by filing affidavit.
6] The learned advocate for the petitioner has submitted that the complaint made by the petitioner stands vindicated by the report submitted by the learned Sub-Divisional Officer. Relying on the report of the Grievance Redressal Committee appointed by the Hon'ble Supreme Court in W.P. (Civil) No. 551/2018 (Disha Panchal and others vs. Union of India, the Secretary and others), the learned advocate for the petitioner has argued that such incidents affecting the candidates are not uncommon and therefore, the Hon'ble Supreme Court also felt it necessary to appoint a committee (Grievance Redressal Committee) to examine the grievance of the candidates about the illegalities or irregularities committed while conducting the examination. Referring to para no. 2 of page no. 8 of the report, it is submitted that Grievance Redressal Committee appointed by the Hon'ble Supreme Court has suggested that the candidate/candidates who have been ::: Uploaded on - 15/06/2018 ::: Downloaded on - 16/06/2018 01:38:34 ::: Judgment 6 wp2842.2018.odt deprived of some time for which the candidate/candidates is/are entitled, the candidate/candidates may be compensated by giving marks, adopting some method for this purpose. Various other submissions, in the nature of emotional appeal pointing out the importance of the NEET UG, 2018 examination are made which in our view are not required to be reproduced as everyone is aware about the importance of NEET UG-2018 examination. 7] The claim of the petitioner is opposed by the respondent no. 1/Board, the respondent no. 3/School (Center) and the respondent no. 4/Invigilator. All these respondents have filed their affidavits stating that the claim made by the petitioner about loss of 30 precious minutes because of the alleged illegal act of the respondent no. 4/Invigilator, is not correct. 8] The respondents have submitted that though the examination was till 1:00 pm, the petitioner and her parents made complaint about loss of time, at about 3:00 pm and there is no explanation for this delay in making the complaint. The respondents have explained in the affidavits the chronology to substantiate that the candidates in class room no. 39 were asked at 10:00 am to start writing the answer papers. Much is argued, relying on the fact that no other candidate had made any complaint about loss of time as alleged by the petitioner.
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Judgment 7 wp2842.2018.odt 9] We have examined the affidavits filed on behalf of the
respondent no. 1/Board, the respondent no. 3/School (Center) and the respondent no. 4/Invigilator.
We are not not only surprised but irked because of the attitude of the respondent no. 1/Board. In the additional affidavit sworn by Dr. Sanyam Bhardwaj - Director, Central Board of Secondary Education, Preet Vihar, Delhi on 09/06/2018, it is stated that the report of the Sub-Divisional Officer that the candidates were permitted to start writing the answer papers after about 20 minutes of the scheduled time of the examination, cannot be accepted. It is stated in the affidavit that the other candidates who have responded in the enquiry by the Sub-Divisional Officer have not specified about the time of commencement of the examination. In para no. 17 of the additional affidavit, it is stated that the performance of some of the candidates who have responded in the enquiry at the NEET UG-2018 examination is poor and their future is not at stake and therefore their statements do not carry any value. Again, the all time excuse of being overloaded with work, having responsibility of conducting the examination involving lacs of candidates, is putforth to oppose the prayers of the petitioner. It is stated that if any relief is granted to the petitioner, it will open pandora's box and lacs of petitions would be filed across the country.
10] Dr. Vandana S. Rokade, Principal of the respondent no. 3/School
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(Center) has sworn the affidavit on behalf of the respondent no. 3/School. In reply/affidavit on behalf of the respondent no. 3/School, it is stated that three External Observers including the representative of the respondent no. 1/Board and five other supervisors were present at the examination center (respondent no. 3/School) and the conducting of the NEET UG-2018 examination was videographed using two video cameras and this includes video recording of class room no. 39. Again, demeaning statement is made in para no. 11 of this reply/affidavit to the effect that video recording of class room no. 39 shows that the petitioner was sitting idle and was not solving the test booklet given to her.
The respondent no. 4/Invigilator has filed affidavit sworn on 25/05/2018 reiterating the stand taken by the respondent no. 3/School (Center).
11] After examining the material placed on record, the report submitted by the Sub-Divisional Officer and considering the submissions made by the learned advocates for the respective parties, we find that the approach of the respondent no. 1/Board and the respondent no. 3/School (Center) in the matter is completely unjustified. It is unfortunate that the respondent no. 1/Board who is custodian of the career and the future of candidates, has opposed the petition treating it as an adversarial litigation. The petitioner has not made any complaint against the respondent no. 1/Board and had only requested the respondent no. 1/Board to ::: Uploaded on - 15/06/2018 ::: Downloaded on - 16/06/2018 01:38:34 ::: Judgment 9 wp2842.2018.odt compensate her for the loss of 30 precious minutes because of the illegality/irregularity committed by the respondent no. 4/Invigilator. We are of the view that the respondent no. 1/Board should have on its own directed the enquiry in the matter. The respondent no. 1/Board came out with the defence that the petitioner had not made any complaint to it and has directly approached this Court. The learned advocate for the petitioner has pointed out that the petitioner had immediately sent complaint to the following :-
1. The examination-in-charge, NEET Exam 2018, CBSE Board Preet Vihar, New Delhi.
2. The District Collector/District Magistrate, District Co-
ordinator for NEET Exam 2018, Nagpur Collectorate, Nagpur.
3. The Police Station In-charge, Hudkeshwar Police Station, Nagpur City, Nagpur.
According to the petitioner, the copies of the complaint were sent to the Hon'ble Prime Minister of India, Hon'ble HRD Minister, Government of India, Shri Nitin Gadkari, MP, Lok Sabha, Nagpur and the Hon'ble Chief Minister, Government of Maharashtra. We find that the respondent no. 1/Board has shirked its obligation of taking cognizance of the complaint made by the petitioner. Not only this, the respondent no. 1/Board has tried to find out loopholes in the report submitted by the Sub-Divisional Officer and this is done without any basis and without co- ::: Uploaded on - 15/06/2018 ::: Downloaded on - 16/06/2018 01:38:35 :::
Judgment 10 wp2842.2018.odt operating with the Sub-Divisional Officer in the enquiry. In the affidavit filed on behalf of the respondent no. 3/School (Center), it is stated that the three External Observers including the representative of the respondent no. 1/Board were present at the respondent no. 3/School (Center) at the time of examination. It is not explained why the respondent nos. 1, 3 and 4 have not requested the Sub-Divisional Officer to record the statements of those three External Observers including the representative of the respondent no. 1/Board. Though it is stated in para no. 11 of the affidavit filed on behalf of the respondent no. 3/School (Center) that conducting of the NEET UG- 2018 examination at the respondent no. 3/School (Center) is videographed and it shows that the petitioner was sitting idle and was not solving the test booklet given to her, the relevant details are not given. It is not stated in the affidavit as to for how long the petitioner was found to be sitting idle.
In para no. 4.9 of the affidavit filed on behalf of the respondent no. 4/Invigilator, it is stated that the NEET UG-2018 examination was conducted in class room no. 39 uninterruptedly and in peaceful manner from 10:00 am to 1:00 pm and during this time, videography of the candidates was done. Again, it is not explained by the respondent nos. 3 and 4 as to why this video recording is not produced before the Sub-Divisional Officer at the time of the enquiry conducted by him.
12] In the statement of Dr. Vandana S. Rokde recorded in the enquiry, it is stated that Dr. Vandana S. Rokade alongwith the representative ::: Uploaded on - 15/06/2018 ::: Downloaded on - 16/06/2018 01:38:35 ::: Judgment 11 wp2842.2018.odt of the respondent no. 1/Board visited all the class rooms of the respondent no. 3/School (Center) between 10:15 am and 10:45 am and at that time, she had not received any complaint from any candidate. Again Dr. Vandana S. Rokade has not pointed out at what time she visited class room no. 39. Moreover, there was no occasion for the petitioner or any other candidate of class room no. 39 to make complaint at the time of visit of Dr. Vandana S. Rokade. The petitioner has stated that she carried an impression that as the paper started at 10:30 am, the candidates would be given time till 1:30 pm. 13] The respondent no. 4/Invigilator in her statement given in the enquiry before the Sub-Divisional Officer has stated that after the OMR sheets and question papers were distributed, instructions were given to the candidates at 10:00 am to start writing the answer papers. Shri Krunal Gaikwad who was deputed in class room no. 39 to assist the respondent no. 4/Invigilator, has stated in the enquiry before the Sub-Divisional Officer that booklet box was opened at 9:50 am and the question papers and the OMR sheets were distributed and then he had gone out of the class room to bring ink pad for taking thumb impression of the candidates as required as per the guidelines issued by the respondent no. 1/Board. Shri Krunal Gaikwad has not stated that the respondent no. 4/Invigilator had asked the candidates at 10:00 am to start writing the answer papers. The conclusions of the Sub-Divisional Officer about loss of time are in consonance with the factual position which has come on record in the statement of Krunal ::: Uploaded on - 15/06/2018 ::: Downloaded on - 16/06/2018 01:38:35 ::: Judgment 12 wp2842.2018.odt Gaikwad, that he had gone out of Room No.39 to get inkpad. The petitioner has claimed that the candidates in class room No.39 were not permitted to start writing the answer paper till 10.30 a.m. Considering the facts which have come on record and as the respondent Nos. 3 and 4 have not produced the alleged video recording which they claimed to be available with them, drawing adverse inference against the respondents, we accept the contentions of the petitioner about the loss of time.
14] The learned advocate for the petitioner has pointed out from the Information Bulletin, Chapter no. 5 which provides for instructions to be followed in the examination hall. Clause (o) of this Chapter no. 5 of the Information Bulletin laid down that the candidate was required to sign twice on the attendance sheet at the specified place, first time immediately after the commencement of the examination and second time while handing over the answer sheet to the Invigilator. It provided that the candidates were also required to put their thumb impressions at the place provided on the attendance sheet. The statement of Krunal shows that the ink pad was not available in class room no. 39 and therefore he had gone out to get the ink pad to get the finger impression of the candidates of class room no. 39. This statement of fact is not disputed by anybody. We find that the learned Sub- Divisional Officer has recorded that time of 20 minutes was lost by the candidates of class room no. 39. It appears that the respondent no. 4/Invigilator had not permitted the candidates of class room no. 39 to start ::: Uploaded on - 15/06/2018 ::: Downloaded on - 16/06/2018 01:38:35 ::: Judgment 13 wp2842.2018.odt writing the answer papers till Krunal returned to class room no. 39 with the ink pad and the finger impressions of the candidates were taken. 15] We are conscious that while exercising the extra-ordinary jurisdiction under Article 226 of the Constitution of India, the Court should be loathe in examining the factual position but in the present case, we feel it necessary to examine the facts of the case and if it is not done perhaps, we will be failing in our duty. The issue is not that lacs of candidates appear at the examination and the Board has been discharging its obligation in the best possible manner. The issue is about the right and entitlement of the petitioner and the career and future of the petitioner. If any wrong is done to the petitioner, she is entitled to invoke extra-ordinary jurisdiction of this Court to set right the wrong done to her in the present case. 16] After assessing the material on record and going through the report submitted by the Sub-Divisional Officer, we find substance in the complaint made by the petitioner. It being so, she has to be compensated.
We accept the claim of the petitioner that she was given only 150 minutes instead of 180 minutes to write the answer paper. 17] After hearing, we closed the matter, reserving the judgment. On 13/06/2018 at 4:30 pm., Shri F.T. Mirza, Advocate for the petitioner, Shri ::: Uploaded on - 15/06/2018 ::: Downloaded on - 16/06/2018 01:38:35 ::: Judgment 14 wp2842.2018.odt A.S. Kilor, Advocate for the respondent no. 3 and Shri N.R. Patil, AGP for the respondent no. 1a mentioned the matter and pointed out the judgment given by the Hon'ble Supreme Court in W.P. (Civil) No. 551/2018 (Disha Panchal and ors. vs. Union of India, The Secretary and ors.) on 13/06/2018. The learned advocate for the petitioner submitted that the petitioner would be entitled for additional proportionate marks as per the formula applied by the Hon'ble Supreme Court in the case of Disha Panchal and ors. (supra). It is pointed out that the formula applied by the Hon'ble Supreme Court is given in para no. 8 of the judgment. The learned advocate for the respondent no. 3 submitted that the petitioner cannot claim additional proportionate marks as the record shows that the petitioner had attempted to solve only two questions of Physics and out of it, only one is right. It is submitted that the petitioner attempted to solve the questions upto Serial No. 178 out of 180 and this shows that the petitioner has not suffered because of loss of 30 minutes as alleged by the petitioner.
18] Be that as it may, we find that the formula applied by the Hon'ble Supreme Court in the case of Disha Panchal and ors. as reflected in para no. 8 of the judgment delivered in W.P. (Civil) No. 551/2018 takes care of all such contingencies. In our view, the interests of justice would be sub- served by directing the respondent no. 1/Board to award additional proportionate marks to the petitioner by applying the formula given in para no. 8 of the judgment delivered in W.P. (Civil) No. 551/2018. ::: Uploaded on - 15/06/2018 ::: Downloaded on - 16/06/2018 01:38:35 :::
Judgment 15 wp2842.2018.odt 19] As we have held that all the candidates who were alloted seats
in class room no. 39 at the respondent no. 3/School (Center) have suffered loss of 30 minutes while writing the NEET-UG 2018 examination, we direct the respondent no. 1/Board to give same benefit to all the candidates who were alloted seats in class room no. 39 of the respondent no. 3/School (Center) by applying the formula referred in para no. 8 of the judgment delivered in W.P. (Civil) No. 551/2018.
20] The respondent no. 1/Board shall undertake the exercise till 22/06/2018 and make available to the petitioner and other concerned candidates the corrected mark sheets immediately.
At this stage, the advocate for the petitioner submitted that the last date to pay by challan is 18th June, 2018 and the mark sheets which would be supplied till then will be taken into consideration in the admission process. It is prayed that the respondent No.1 Board be directed to complete the exercise as per the directions given above till 17th June, 2018. Paragraph 12(F) of the judgment passed by the Hon'ble Supreme Court in Writ Petition (Civil) No.551 of 2018 and other connected petitions, is pointed out and it is submitted that in case the respondent No.1 Board fails to complete the exercise before 18th June, 2018, the directions be given to consider the corrected mark-sheets as would be made available to the petitioner. ::: Uploaded on - 15/06/2018 ::: Downloaded on - 16/06/2018 01:38:35 :::
Judgment 16 wp2842.2018.odt We feel that the respondent No.1 Board will not be able to complete the exercise before 18th June, 2018, however, even if the exercise as per the directions given above is completed till 22nd June, 2018, the respondents and concerned authorities can be directed to consider the revised mark-sheets of the petitioners and the other students in respect of whom we have given directions, in the second round of counselling. We, accordingly, direct the respondent and the concerned authorities to consider the revised mark-sheets of the petitioners and other students regarding whom directions are given in this judgment, in the second round of counselling.
21] The writ petition is allowed accordingly. In the circumstances, the parties to bear their own costs.
JUDGE JUDGE 22] At this stage, Shri C.S. Kaptan, learned Senior Advocate
appearing on behalf of respondent-Board requests that the effect and operation of the judgment be kept in abeyance for a period of four weeks, so as to enable the Board to take appropriate steps in the matter. The request is opposed by the learned Advocate appearing for the petitioner. ::: Uploaded on - 15/06/2018 ::: Downloaded on - 16/06/2018 01:38:35 :::
Judgment 17 wp2842.2018.odt 23] Considering the facts of the case, we find that the
petitioner and other similarly situated students would be adversely affected if the request as made on behalf of the respondent-Board is granted. Therefore, the request is rejected.
Steno copy of this judgment be furnished to the parties.
JUDGE JUDGE
Ansari
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