Naresh Pal Vs. High School and Intermediate Education Board, Branch Office, Bareilly - Court Judgment

Excerpt:
constitution - presumption of unfair means - section 114 of evidence act, 1872 and article 226 of constitution of india - result of student withheld - not showing calculation of solving the question of mathematics denotes use of unfair means - allegation of copying based only on presumption and not on any material - held, order withholding result quashed-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]. order1. the petitioner appeared at high school examination 1991. his result was withheld. he was, however, given a provisional mark-sheet in which he was shown to have secured 346 marks out of 600.2. the petitioner received a show cause notice to appear before the enquirycommittee. the charge against the petitionerwas that he did not show calculation work toanswer question no. 8(kha) of mathematics1st paper but the answer was correct whichindicates that he used unfair means. thepetitioner denied the charge. the boardcancelled the result of the petitioner by orderdt. 9th feb. 1993, a copy of which has beenannexed as annexure-2 to the writ petition.the petitioner has filed this writ petition inthis court against the order. 3. on behalf of the respondent a counter affidavit has been filed. this court summoned the record. learned standing counsel has produced the answer book of the petitioner in mathematics 1st paper. the petitioner was aliotted roll no. 1404940. the charge-sheet, which was issued to the petitioner, was also produced. the charge indicates that while answering question no. 5(kha) he did not show calculation work though his answer was correct.4. the answer book has been produced before me. it certainly indicates that calculation has not been shown in detail while answering question no. 8(kha) but the answer is correct. this only shows that the candidate could not come to a conclusion without doing calculation work on the basis of which the correct conclusion could have been drawn. it may be that the student may have learnt the answer by heart regarding the question which was asked in the question paper. in that situation the answer may be correct though the calculation work has not been shown. a student is awarded marks on the basis of the correct procedure being adopted while solving a question. he may not be entitled to any marks in answering such a question even though the answer may be correct.5. there is, however, no basis for holding that the student had used unfair means. there is no presumption that while the answer is correct but the calculation work in solving a question in mathematics in detail has not been given, he must have used unfair means by copying from the answer book of any other candidate or from any other material.6. there is no charge against the petitioner that he had copied from any answer book or used any other material for answering question no. 8(kha) in mathematics 1st paper. as there is no material on the basis of which any conclusion could have been drawn that the petitioner used unfair means, the order of cancellation of result of the petitioner is illegal.7. the order cancelling the result of the petitioner is quashed and the respondent is directed to declare the result of the petitioner within three weeks from the date of production of a certified copy of this order.8. petition allowed.

Judgment:
ORDER

1. The petitioner appeared at High School examination 1991. His result was withheld. He was, however, given a provisional mark-sheet in which he was shown to have secured 346 marks out of 600.

2. The petitioner received a show cause notice to appear before the EnquiryCommittee. The charge against the petitionerwas that he did not show calculation work toanswer question No. 8(Kha) of Mathematics1st Paper but the answer was correct whichindicates that he used unfair means. Thepetitioner denied the charge. The Boardcancelled the result of the petitioner by orderdt. 9th Feb. 1993, a copy of which has beenannexed as Annexure-2 to the writ petition.The petitioner has filed this writ petition inthis Court against the order.

3. On behalf of the respondent a counter affidavit has been filed. This Court summoned the record. Learned Standing Counsel has produced the answer book of the petitioner in Mathematics 1st Paper. The petitioner was aliotted Roll No. 1404940. The charge-sheet, which was issued to the petitioner, was also produced. The charge indicates that while answering Question No. 5(Kha) he did not show calculation work though his answer was correct.

4. The answer book has been produced before me. It certainly indicates that calculation has not been shown in detail while answering Question No. 8(Kha) but the answer is correct. This only shows that the candidate could not come to a conclusion without doing calculation work on the basis of which the correct conclusion could have been drawn. It may be that the student may have learnt the answer by heart regarding the question which was asked in the question paper. In that situation the answer may be correct though the calculation work has not been shown. A student is awarded marks on the basis of the correct procedure being adopted while solving a question. He may not be entitled to any marks in answering such a question even though the answer may be correct.

5. There is, however, no basis for holding that the student had used unfair means. There is no presumption that while the answer is correct but the calculation work in solving a question in Mathematics in detail has not been given, he must have used unfair means by copying from the answer book of any other candidate or from any other material.

6. There is no charge against the petitioner that he had copied from any answer book or used any other material for answering Question No. 8(Kha) in Mathematics 1st Paper. As there is no material on the basis of which any conclusion could have been drawn that the petitioner used unfair means, the order of cancellation of result of the petitioner is illegal.

7. The order cancelling the result of the petitioner is quashed and the respondent is directed to declare the result of the petitioner within three weeks from the date of production of a certified copy of this order.

8. Petition allowed.