Srima Pattanayak Vs. Council of Higher Secondary Education, Orissa and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it is not a question of charging any one individual with unfair means, but to condemn the examination as ineffective for the purpose it was held. if at a particular centre the whole body of students receive assistance and manage to secure success, it is obvious that the council cannot remain as a silent spectator. 6. the examination committee consisting of reputed professors and educationists considering the report placed by the flying squad and being satisfied that there was resort to malpractice approved the same and directed the results of the examination of that particular sitting to be cancelled.pasayat, j.1. petitioner, who was a candidate in the annual+2 arts examination, 1996 conducted by the council of higher secondary education, orissa (hereinafter referred to as 'council') has prayed for revaluation/re-checking of answer paper of english paper-i as she has been awarded '0' (zero) mark. prayer has also been made for re-checking of answer papers of certain other subjects, i.e., history papers-i and ii. petitioner had appeared as a candidate from barapali college, barapali where she was prosecuting her studies as a regular candidate.2. from the counter affidavit filed by the council, we find that because of resort to mass scale of mal-practice, result so far as examination of english paper-i is concerned was cancelled and zero mark was awarded to each candidate in the said paper. flying squad of the council visited the examination centre and found large number of candidates resorting to mal-practice, and suggested cancellation of the examination in respect of english paper-i. therefore, there is no scope for entertaining the writ application. rejoinder affidavit has been filed by the petitioner stating that only 71 students were found resorting to mal-practice, when the flying squad visited, and considering large number of students, who appeared in the examination, question of cancellation of results of all the candidates is not proper, that too without observing principles of natural justice.3. records were produced before us by the learned counsel appearing for the council. following observations were made by the flying squad which reached the examination centre at 3.45 p.m. and remained there till 4.40 p.m. :'(i) the general conditions around the examination centre was disturbing.(ii) general condition inside the examination hall was disturbing.(iii) outsiders were present.(iv) no police protection was sought.(v) examination was not conducted as per c.h.s.e. rules.(vi) rampant mal-practice was adopted inside the examination hall.(vii) mal practice could not be detected and reported because it was not possible to search as the situation was beyond control.(viii) majority were involved in malpractice.(ix) some invigilators were abettors to malpractice.'4. according to section 21 of the orissa higher secondary act, 1982 (in short, 'the act'), the council shall constitute different committees, and one such committee constituted is the examination committee. regulations are framed under section 30 of the act which inter alia deals with powers and duties of the committees specified in section 21. regulation 77 of the orissa higher secondary education regulations, 1982 (in short, 'the regulations') deals with the powers of the examination committee. clause (vii) thereof provides that the examination committee will consider the cases of malpractice and award of punishment to the candidates concerned.5. mass copying has not been defined in the act or the regulations. it has, therefore, to be understood in its common parlance. what could be considered mass copying cannot be laid down with mathematical precision. it has to vary and has to be decided on facts and circumstances of each case. generally, it would be a case of copying by a vast majority or on a massive scale or in such large proportion that ii was not possible to check it. it is the unwritten rule of any examination that it must be conducted fairly which would include the concept that the examinees must take the examination fairly. adoption of unfair practice either individually or as mass is antithesis of fairness of the examination, and even in the absence of any specific rule for the purpose, the examining body has the power not to accept the result of the examination, and take action either against an individual or against all the examinees as a whole in case of mass involvement in unfair means. the rule is implicit in all examinations and hence the council or the committee is within its right to cancel the examination if such a rule is violated. in a case of mass malpractice, where large number of candidates resort to malpractice, it is not a case of particular individual who is being charged with adoption of unfair means, but of the conduct of all the examinees or at least a vast majority of them at a particular centre. it is not a question of charging any one individual with unfair means, but to condemn the examination as ineffective for the purpose it was held. the council is not required to grant any opportunity to alt the candidates to present their case. the council does not charge any one with unfair means so that he could claim to defend himself. the examination itself was vitiated by adoption of unfair means at a mass scale. the examination committee is responsible for fair conduct of examination. the essence of examination is that the worth of every candidate appearing therein without any assistance from outside source is appraised. if at a particular centre the whole body of students receive assistance and manage to secure success, it is obvious that the council cannot remain as a silent spectator. it cannot hold a detailed quasi-judicial inquiry with a right to its alumni to plead and lead evidence etc. before the results are withheld or the examinations cancelled. if there is sufficient material on which it can be demonstrated that the council was right in its conclusion that the examinations sought to be cancelled, then academic standards require that the council's appreciation of the problem must be respected. it would not be for the court to inquire in such matters. the court cannot ask the council to grant opportunity to all the candidates or their representatives with a view to ascertain whether they had received assistance from any outside source. that would encourage indiscipline. the position was succinctly stated by the apex court in the bihar school examination board v. subhas chandra sinha, air 1970 sc 1269.the falling standards of education are resultant of unfair means being adopted at the examinations. the real worth of a student is never tested in the process. he who deserves five marks gets eighty-five marks because of assistance received from outside source and unfair means adopted. the degree or diploma or certificate is not received in its true sence and is tainted with the vice of adopting unfair means.6. the examination committee consisting of reputed professors and educationists considering the report placed by the flying squad and being satisfied that there was resort to malpractice approved the same and directed the results of the examination of that particular sitting to be cancelled. there is no scope for interference with the decision.the inevitable conclusion is dismissal of the writ application, which we direct. no cost.s.n. phukan, c.j.7. i agree.