Sujata Mallick and ors. Vs. Council of Higher Secondary Education and ors. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - in paragraph-8 thereof however, he has stated that the examination in question was conducted smoothly and strictly under the supervision of the centre superintendent as well as central squad and flying squad along with the tahasildar and additional tahasildar which he ascertained from records of the college. they recommended for cancellation of that sitting of the examination. 5. the law is well settled that if the examining body on being satisfied that a vast majority of the examinees at a particular centre had adopted unfair means, the examination was vitiated by adoption of unfair means or mass malpractice, the examination as a whole had to be cancelled. the flying squad, which supervised the centre and submitted the report, was constituted of senior lecturers of different colleges like ravenshaw college, government college, angul and womens' college, cuttack and there is no reason as to why such senior teachers of different colleges would jointly have any motive or malice against the petitioners-students and submit a false report.p.k. mohahty. j. 1. the petitioners assail the order of cancellation of examination in subject m.i.l. (oriya) (regular and ex-regular) of commerce stream held on 7-3-2001 and political science paper-11 (regular) held on 7-3-2001 vide annexures-8 and 9 respectively of chitalo mahavldyalaya centre in the district of jaipur.2. the petitioners are students of +2 arts and commerce stream of chitalo mahavidyalaya who had appeared at the annual higher secondary examination 2001. the +2 arts and commerce examinations were conducted as per the programme, a copy of which is annexure-1 and according to the petitioners the examination was conducted smoothly and strictly in accordance with the rules, being supervised by the tahasildar and additional tahasildar of jaipur, the teachers of the college having gone on strike due to call given by the all orissa non-government teachers' association. it is asserted that the examination centre in question had been supervised for 21 times by central squad and flying squad including one manoranjan mohanty who was deputed by the council and no adverse report had been submitted in respect of conduct of examination in the centre. on 7-3-2001 m. i. l. (oriya) (regular and ex-regular) examination of the commerce stream was held in the centre and the central squad detected six malpractice cases and on 17-3-2001, when the political science paper-ii (regular) examination was conducted only one malpractice case was detected and the reports were forwarded to the centre superintendent and the council. but by notification dated 22-6-2001 the council of higher secondary education, cancelled the examination of the entire centre in respect of political science paper-ii regular conducted on 17-3-2001 in the second sitting and m. i. l. (oriya) commerce (regular and ex-regular) conducted on 7-3-2001 in first sitting, copies whereof are annexures-8 and 9. according to the petitioners, the centre having been supervised throughout the examination for 21 times by different agencies deputed by the council and there having been no adverse report with regard to the conduct of examination, the cancellation of the centre in respect of these papers are illegal, arbitrary and without any basis. the petitioners allege that due to mala fide intention of the concerned authority in order to expect unlawful gains have passed such order over-looking the report of their own agencies even when no mass malpractice was ever adopted in the centre. hence, the petitioners have approached for quashing the order of cancellation.3. the petitioners have arrayed the centre superintendent and the principal of the college as opp. parties 3 and 4 respectively and the tahasildar, jaipur as opp. party no. 5. opp. party no. 3 in his counter has stated that on 7-3-2001 in first and second sittings m. i. l. (oriya) of commerce stream for regular and ex-regular and m. i. l. (oriya) of arts stream for ex-regular were conducted strictly in accordance with the council rules. the opp. party no. 3 along with the central squad and flying squad conducted individual checking in a routine manner. the central squad and flying squad of n. c. college, jaipur had visited the centre and on checking found only six numbers of malpractice cases. on 17-3-2001 during thesecond sitting when political science paper-ii of +2 arts stream was being conducted, he with the assistance of the central squad and the flying squad of n. c. college, jaipur conducted thorough checking and found only one candidate with incriminating material which was reported. according to this opp. party the examination in question was conducted in accordance with the rules and there was no mass malpractice. opp. party no. 4, the principal-in-charge of the college has filed a counter affidavit. but in paragraph-2 of the affidavit it is specifically stated that due to the teachers strike called by the all orissa non-government college teachers' association he could not discharge his duties as principal in the higher secondary examination, 2001, but was all along present in the station and he knows that the examination in question was conducted peacefully and strictly in accordance with rules. in paragraph-8 thereof however, he has stated that the examination in question was conducted smoothly and strictly under the supervision of the centre superintendent as well as central squad and flying squad along with the tahasildar and additional tahasildar which he ascertained from records of the college. in view of the specific stand that he was on strike along with other teachers and has not discharged his duties the averments and assertions made in the counter affidavit arc of no consequence and, therefore, need no consideration.4. mr. s. s. das, learned counsel appearing for the council of higher secondary education, the examining authority has produced the report of the flying squad in respect of chitalo mahavidyalaya with regard to the examination conducted on 7-3-2001 and 17-3-2001 on consideration of which the council took the decision to cancel those two papers of examination for perusal of the court. a perusal of the reports indicate that the general condition inside the examination hall was disturbing and inside and outside the college campus, outsiders were present. there was malpractice inside the examination hall as. the report dated 17-3-2001 indicate that the invigilators were abaters to the malpractice. the detailed report was given in a separate sheet, when the squad reached the centre the opening of the gate was delayed, but they could notice that the candidates were throwingaway incriminating materials, which were being collected by the employees of the college. a crowd was present at the gate and around the college. on their sample search one malpractice case was booked. objective answers were dictated to the examinees and on verification all the answer scripts were found identical. according to the report, the centre has adopted the modus operandi of dictation of answers to the candidates. according to the squad the examination was not conducted in accordance with the rules. one lecturer from dhenkanal college, one from ravenshaw college and one smt. a. mohanty lecturer of government college. angul were the members of the squad. the report with regard to the examination held on 7-3-2001 is still worse. it is stated that the teachers including some other people who were not connected in the examination were present inside the examination hall. according to the special report on their approach at the college gate, they found some people running from upstair of the building when the examination was going on and some people were running around the building collecting incriminating materials thrown out by the examinees, when they found presence of the squad. a group of outsiders were standing near the examination control room where six teachers, who were on strike, were sitting on a blanket. they conducted sample search. on entering the examination halls they found the students sitting silently putting their pens down. the squad was of the considered opinion from the situation that prevailed during the examination that the invigilators including the teachers were abettors to the malpractice. the equal consisted of three senior lecturers one from s. b. womens' college, one from ravenshaw college and the other from government college, angul. they recommended for cancellation of that sitting of the examination. on consideration of the report of the squad the examination committee of the council has taken the decision to cancel the examination.5. the law is well settled that if the examining body on being satisfied that a vast majority of the examinees at a particular centre had adopted unfair means, the examination was vitiated by adoption of unfair means or mass malpractice, the examination as a whole had to be cancelled. the essence of the examination is that the worthof every examinee is appraised without any external aid from an outside source. if there is sufficient material on which it can be demonstrated that the council was right in its conclusion that the examination should be cancelled in order to maintain the academic standard, then the examining body's appreciation, of the problem must be respected.6. in view of the report of the flying squad that the vast majority of students were adopting unfair means in the concerned papers and the examination was not conducted in accordance with the rules and norms prescribed by the council, the decision of the examination committee of the council to cancel the examination in question cannot be faulted. the petitioners have not placed any material whatsoever to substantiate the allegation that the report and the cancellation thereon are the outcome of mala fide intention of the authorities. the flying squad, which supervised the centre and submitted the report, was constituted of senior lecturers of different colleges like ravenshaw college, government college, angul and womens' college, cuttack and there is no reason as to why such senior teachers of different colleges would jointly have any motive or malice against the petitioners-students and submit a false report. the allegations have no foundation and as such has to be rejected.in that view of the matter, we do not find any merit in the writ petition and accordingly. it is dismissed.pradipta ray, j.7. i agree.