Sunil Kumar JaIn Vs. the Board of High School and Intermediate Education, U.P., Allahabad and ors. - Court Judgment

Excerpt:
constitution - practice of unfair means by student - student did rough work on his palm and desk - board cancelled exam - writ petition by the student for quashing the order of board - no instructions for examination prohibited doing rough work on palm of the hand or on desk - petition allowed. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. orderhari swarup, j.1. the petitioner sunil kumar jain had appeared at the intermediate examination of 1971 conducted by the board of high school and intermediate education, u. p. (hereinafter called the board). his result was withheld. subsequently an enquiry committee was set up and the petitioner was served with a questionnaire. one of the questions was as to how he had solved the equation 53.5 x 46/1000 and got the result 2.461 without doing rough calculation. the petitioner's explanation was that he was in the habit of doing the rough calculation work on his palm or on the desk. this explanation was not accepted by the examinations committee and a report was made to the board that the petitioner was guilty of using unfair means at the examination. on this report the board cancelled the examination. aggrieved by this order, the petitioner has filed the present writ petition.2. in the petition it has been asserted that the rough calculation work has been done on the palm or on the desk. in the counter-affidavit it has been stated that this explanation was not accepted as it was against the instructions printed on the back of the admission card and on the answer book. learned standing counsel has not been able to point out any instruction either on the admission card or on the answer book which prohibits the use of the palm or the desk for rough calculation work. hence the very foundation for the inference drawn by the committee is missing. even if there were such instructions and the petitioner had violated them, he could be punished only for violation of the same if there were a provision for such punishment. 'using of unfair means' has a nexus with the employment of prohibited material and the taking help of an outside agency. if the candidate had, applying his own mind, made calculations on the desk or on the palm he; cannot be said to have used unfair means.3. even if the explanation of the petitioner is not accepted as correct, there was no material before the examinations committee to come to the conclusion that the candidate had used unfair means. the equation is a very simple one and required just two steps of multiplication to arrive at the result. it is not denied that the petitioner had obtained a first class in the high school with distinction in mathematics. for such a student this simple equation was not at all difficult to solve. the inference drawn by the examinations committee is thus unwarranted and is not based on any material on record. the board had therefore no authority to withhold the result of the petitioner.4. the writ petition is accordingly allowed. the order of the board cancelling the petitioner's examination is quashed. let a writ in the nature of mandamus be issued to the board directing it to declare the result of the petitioner's examination of 1971. the petitioner will be entitled to his costs.

Judgment:
ORDER

Hari Swarup, J.

1. The petitioner Sunil Kumar Jain had appeared at the Intermediate Examination of 1971 conducted by the Board of High School and Intermediate Education, U. P. (hereinafter called the Board). His result was withheld. Subsequently an enquiry committee was set up and the petitioner was served with a questionnaire. One of the questions was as to how he had solved the equation 53.5 x 46/1000 and got the result 2.461 without doing rough calculation. The petitioner's explanation was that he was in the habit of doing the rough calculation work on his palm or on the desk. This explanation was not accepted by the examinations committee and a report was made to the Board that the petitioner was guilty of using unfair means at the examination. On this report the Board cancelled the examination. Aggrieved by this order, the petitioner has filed the present Writ Petition.

2. In the petition it has been asserted that the rough calculation work has been done on the palm or on the desk. In the counter-affidavit it has been stated that this explanation was not accepted as it was against the instructions printed on the back of the admission card and on the answer book. Learned Standing Counsel has not been able to point out any instruction either on the admission card or on the answer book which prohibits the use of the palm or the desk for rough calculation work. Hence the very foundation for the inference drawn by the committee is missing. Even if there were such instructions and the petitioner had violated them, he could be punished only for violation of the same if there were a provision for such punishment. 'Using of unfair means' has a nexus with the employment of prohibited material and the taking help of an outside agency. If the candidate had, applying his own mind, made calculations on the desk or on the palm he; cannot be said to have used unfair means.

3. Even if the explanation of the petitioner is not accepted as correct, there was no material before the examinations committee to come to the conclusion that the candidate had used unfair means. The equation is a very simple one and required just two steps of multiplication to arrive at the result. It is not denied that the petitioner had obtained a First Class in the High School with distinction in Mathematics. For such a student this simple equation was not at all difficult to solve. The inference drawn by the examinations committee is thus unwarranted and is not based on any material on record. The Board had therefore no authority to withhold the result of the petitioner.

4. The Writ Petition is accordingly allowed. The order of the Board cancelling the petitioner's examination is quashed. Let a writ in the nature of Mandamus be issued to the Board directing it to declare the result of the petitioner's examination of 1971. The petitioner will be entitled to his costs.