- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6766 /2010 Suchita w/o Sham Dehedkar, age 35 yrs., occu.household, r/o Dehedkarwadi, Jalna. Dist.Jalna for her daughter Kum.Ruchi d/o Sham Dehedkar, aged 16 yrs., minor. ...Petitioner.. Versus 1] The State of Maharashtra. 2] Maharashtra State Board of Secondary and Higher Secondary Education, Aurangabad Divisional Board, Station Road, Osmanpura, Aurangabad Dist.Aurangabad. ...Respondents... ..... Shri S.S. Jadhavar, Advocate appointed for petitioner. Smt.A.V. Gondhalekar, AGP for respondent no.1. Shri A.R. Nikam, Advocate for respondent no.2. ..... - 2 - CORAM: P.V. HARDAS & N.D. DESHPANDE, JJ. DATE: 30.07.2010 ORAL JUDGMENT (Per Hardas, J.): 1] Rule. Rule returnable forthwith. With the consent of learned counsel for the parties, this petition is heard finally at the stage of admission. 2] This petition was presented by the petitioner in person for representing the cause of her daughter namely Kum.Ruchi d/o Sham Dehedkar, aged 16 yrs., and thereafter this Court enquired from the petitioner as to whether she would like to be represented by an Advocate appointed by the Court. On the petitioner expressing her willingness, we appointed Shri S.S. Jadhavar, Advocate, to represent the petitioner in this petition before us. 3] This is an unfortunate case of the petitioner’s daughter, who suffers with disability of 75% blindness, stands debarred for October 2010 examination and the cancellation of her performance in the March – April 2010 examination of S.S.C. (10th Std.). The petitioner’s daughter had appeared in the first paper, which was of Marathi language, on 4.3.2010. A sticker is pasted on the first page of the answer sheet, which contains the bar code. Specific instructions are to be found vide Instruction No.4 that no mark or writing should be made on the bar code and in the event any writing or any mark is found on the bar code, the same would be - 3 - considered as use of unfair means. According to the petitioner, since the illumination in the hall was inadequate, the petitioner’s daughter had requested that she be permitted to sit outside the hall in order to answer the paper, which was permitted. The petitioner contends that on account of that, her daughter was not aware about the oral instructions issued to the other students in the examination hall about not writing anything or not putting any mark on the bar code. It appears that, according to the petitioner, her daughter has inadvertently written examination seat number on the bar code. 4] The entire scheme of evaluation of the answer sheets is that a candidate is required to put the examination number as well as sign on the answer sheet, however, the said portion is masked by affixing black colored paper, which is opaque. Similarly, other columns, which would tend to identify the paper as that of a particular candidate, are also masked by pasting black colored opaque paper. Since the scheme did not contemplate masking the bar code, the seat number of the petitioner’s daughter remained on the bar code. 5] An inquiry was conducted in which the petitioner had candidly admitted that she had written the examination seat number on the bar code and, thus, rendered herself liable for the disciplinary action pursuant thereto. Accordingly, it appears that the performance of the petitioner’s daughter for that examination was cancelled and she was punished as being debarred for October 2010 examination. The petitioner contends that her daughter had written the seat number on the bar - 4 - code inadvertently and had no intention whatsoever for resorting to this mal- practice of deriving any advantage in the evaluation of her answer-sheet. 6] Shri S.S. Jadhavar, learned counsel appointed on behalf of the petitioner and ably argued on behalf of the petitioner, has urged before us that the petitioner’s daughter is a meritorious student and, therefore, she would not resort to such a dubious practice. It is also urged before us that the petitioner’s daughter had stood 6th in the District Secondary Scholarship Examination and had been awarded the scholarship. It is stated before us that despite the handicap of being 75% blind, the petitioner’s daughter appeared for the examinations and passed the examination with great distinction. It is, therefore, urged before us that since it is only a technical mistake, the petitioner’s daughter may not be punished with the punishment, which is imposed on her. 7] Shri A.R. Nikam, learned counsel for respondent no.2 – Board, has urged before us that the petitioner’s daughter is guilty of the mal-practice, which is alleged, as she had admitted that she had written the examination seat number on the bar code. It is also urged before us that the petitioner’s daughter has admitted to have written the seat number and, therefore, has rendered herself liable for the punishment and the punishment, which is imposed on her, is not disproportionate to the mal-practice, which is alleged. 8] It is true that the petitioner’s daughter has written the seat number on the - 5 - bar code. Whether she intended to derive any advantage thereby or resort to other dubious methods of enhancing the marks, is not a matter, which this Court would be called upon to dwelve into. Suffice it to state that the petitioner’s daughter has committed a grave misconduct as the same is against the instructions, which appear on the answer-sheet itself. The petitioner’s daughter can not escape from the said liability. However, we find that since she was a meritorious candidate, she may not have resorted to this dubious practice in order to ensure that she gets enhanced marks, looking to her academic career. However, the petitioner’s daughter is technically guilty and, therefore, the punishment of cancellation of her performance in the examination is justified. However, since she is a handicapped student, who is fight against all odds – both physical and others, in order to pursue her academic career, according to us, the punishment of debarring her for October 2010 examination appears to us to be highly disproportionate in the facts of the present case. In the peculiar facts of the present case, therefore, according to us, the punishment of debarring the petitioner’s daughter for October 2010 examination can not be justified. 9] Accordingly, this petition is partly allowed and the punishment imposed on the petitioner’s daughter is partly set aside. The punishment in respect of cancellation of her performance in the examination, in which she had appeared, appears to be justified. However, we set aside the punishment by which the petitioner’s daughter stands debarred from appearing for October 2010 examination. In the peculiar facts of the present case, we direct that in the event - 6 - the last date for submission of the examination forms is over, the respondent no.2 - Board shall treat this as a special case and accept the examination form of the petitioner’s daughter namely Kum.Ruchi d/o Sham Dehedkar, without insisting on payment of late fees. Rule is made absolute on the terms indicated above with no order as to costs. We wish to record our appreciation for the efforts taken by Shri S.S. Jadhavar, learned counsel, in arguing this petition on behalf of the petitioner and accordingly we quantify the fees payable to him at Rs.5,000/- (rupees five thousand only). (N.D. Deshpande, J.) (P.V. Hardas, J.) ndk/c3071041