Madhya Pradesh High Court
Sushil Kumar Gupta vs The State Of Madhya Pradesh Judgement ... on 6 September, 2013
W.P. No. 8621 Of 2013
6.9.2013
Shri Ashok Tiwari, learned counsel for the petitioner.
Shri O.P. Namdeo, learned counsel for the respondents.
Being aggrieved by cancellation of her admission in Class VIth , Jawahar Navodaya Vidyalaya, Amarkantak, District Anuppur, by order dated 13.8.2012, petitioner has preferred the present writ petition.
Cancellation of petitioner's admission, as evident from the order is on the ground that the petitioner got selected by appearing for second time in the All India Entrance Test; which is contrary to the stipulation in Brochure of Examination 2012, that earlier she appeared in 2011.
The cancellation order emanates from the complaint lodged by the villagers of village Karpa where the petitioner resides; wherein, it was alleged that the petitioner had twice appeared in the examination in 2011 wherein she failed; thereafter in year 2012. The complaint was received by the Sub Divisional Officer ( Revenue) Pushprajgarh, District Anuppur. The complaint was forwarded to the Principal, Jawahar Navodaya Vidyalaya, Amarkantak which led the school authority to conduct the fact finding enquiry wherein information was collected from the petitioner and her cousins, viz., Harshita Tiwari and Divakar Tiwari studying in the same school in Class IXth and VIIIth respectively. These cousins states that Shivanjali (petitioner) has one sister Shreya Tiwari who studies in Class IVth in Navjyoti School, whereas, the petitioner (Shivanjali Tiwari) in her statement categorically states that she had twice appeared in the entrance examination in 2011 when she was not selected and again in 2012. Being commenced that the petitioner, despite of there being prohibition twice appeared in entrance, cancelled her admission by impugned order.
Petitioner questions the cancellation on the ground that it ws her elder sister Shivanshi Tiwari had appeared in 2011 examination and not the petitioner. It is contended that three daughters and one son were born to her parents, viz., Shivanshi Tiwari (8.9.2001), Shivanjali Tiwari (8.9.2002), Shreya Tiwari (8.10.2003). Reliance is placed on the birth certificate issued on 22.1.2013.{These certificates are issued on the basis of the affidavit given by the father of the petitioner and is not extracted from the Birth and Death Register. It is submitted by the petitioner that at relevant time the birth were not recorded}. Petitioner has also filed the students attendance register of Government Primary Girls School, Medhakhar and Karpa (Annexure P/1 and P/2) to demonstrate the submissions that Shivanshi and Shivanjali (the petitioner) are two different person having separately presented their studies and that it was Shivnshi who had appeared in 2011 entrance examination and that the petitioner had appeared only once in 2012. On the strength of these submissions petitioner seeks quashment of cancellation order.
Considered the rival submission and perused the material on record.
So far as prohibition from appearing twice in the examination for entrance in Jawahar Navodaya Vidyalaya, clause 4 (3) of Brochure:
Jawahar Navodaya Entrance Examination 2012 stipulates:
The petitioner also does not dispute that a candidate is not allowed to appear twice in entrance examination.
The question thus is whether it was the petitioner who had appeared in the examination held in the year 2011 or as claimed her sister, if there was any. If it is established that her elder sister appeared in 2011 examination then the cancellation order deserves to be quashed.
Petitioner as well as respondents have relied on various documents to substantiate their respective claim. With the writ petition, petitioner initially filed copy of attendance register of Class III, IV & V. Annexure P/1 pertains to Shivanjali and are extracts of attendance register of July 2009 (Class III), July 2010 (Class IV and July 2011 (Class V), meaning thereby that she passed Class III in 2010, Class IV in 2011 and Class V in 2012. As the final examination are held in March April and the academic year is April to March. Annexure P/2 relates to Shivanshi Tiwari who was in Class III in 2008, in Class IV in 2009 and in Class V in 2010. The application forms of Examination 2011 and 2012 are brought on record by both the parties. Whereas, application form of the year 2011 is by Shivanshi Tiwari and is daed 27.9.2012 wherein at Sl. No. 9 ([k) (2) she is shown as prosecuting the studies in Class V, this fact corroborates with Annexure P/2, Class V attendance register of July 2010. Similarly admission form 2012 corroborates with Annexure P/1, because as on 8.12.2011, the date of application, petitioner was prosecuting her class V studies. These two forms apparently relates to two different candidates. There is no material on record to substantiate the respondents' suggestion that both the admission forms, i.e., 2011 and 2012 belongs to one candidate. Nor there is any averment that the petitioner herein had personated the candidate Shivanshi in 2011.
This aspect is also evident from the enquiry conducted by the Block Education Officer, Pushprajgarh, District Anuppur.
Regarding admission by the petitioner as contained in Annexure R/1 and the statement by petitioner's cousins studying in class VIIIth and Class IXth there is no material on record to suggest as to in whose presence these statements are recorded. Neither the respondents are able to establish that the petitioner had voluntarily given the statement contained in Annexure R/1. In absence of such prove. An admission unless unequivocal is not admissible [check 1974 LIC (I) 1054, 1990 LIC 1338, AIR 1961 SC 1070, 1991 (4) SLR 604]. Moreover being a minor petitioner's statement as contained in Annexure R/1, even if it is accepted to have been given, cannot be used against.
Furthermore, in respect of the certificates of birth and death filed by petitioner, it is observed that the same are not based on any previous entry made in Register of Birth and Death but are based on the affidavit filed by the petitioner's father and cannot be admitted as the conclusive proof of the fact recorded therein. This act of petitioner's father creates a doubt about the contentions regarding having a daughter by name of Shivanshi who died on 13.6.2011.
Evidently as pleaded in the petition that the petitioner and Shivanshi had prosecuted their studies from Class IIIth to Vth in a Government Primary School and the Dakhil Kharij Register records their date of birth, petitioner's father who himself a teacher is under an obligation to disclose the basis for recording such dates. Moreover, to clear the doubt it was incumbent upon petitioner's father to have disclosed the nomination form which is required to be filled with the the with the employer. However, for the reasons best known to him he has not done so. This conduct of the petitioner's father creates a doubt about the entire story projected by petitioner's father which calls for an enquiry by the District Education Officer, Anooppur regarding the conduct of the petitioner's father who is a teacher. This, however, does not in any manner dilute the finding that Shivanjali and Shivanshi are two candidates.
In view of above analysis respondents having failed to establish that it was the petitioner who had appeared in examination held in the year 2011, the impugned order of cancellation of petitioner's admission in Navodaya Vidyalaya is set aside. The respondent Nos. 1, 2 and 3 are directed to treat the petitioner as regular student and allow her to prosecute her studies in Jawahar Navodaya Vidyalaya, Amarkantak.
In respect of the conduct of petitioner's father who has filed this petition and has sworn the affidavit the District Education Officer, Anuppur is directed to hold an enquiry as to the admission of Shivanjali and Shivanshi in Government Primary School Medhakhar and Karpa, as to recording of their date of birth in Dakhil Kharij Register and the nomination if any given by the petitioner's father in the service record and whether the same is in consonance with the information given by him in the present writ petition. In case any deviation is noticed the District Education Officer, Anuppur besides taking action under disciplinary rule, shall also be at liberty to lodge criminal case under law. The enquiry shall be completed within three months from the date of communication of this order after giving an opportunity of hearing to the petitioner's father. And the report be also furnished to Registrar General, High Court of Madhya Pradesh, Jabalpur to be kept on the record of present petition.
Respondent No. 3 shall bring to the notice of District Education Officer, the present order and shall furnish to him the copy of petition, return, rejoinder and the documents filed in the present case.
The petition is finally disposed of in above terms. No costs.
(SANJAY YADAV) JUDGE Vivek Tripathi