IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 709 of 2009 Between: Nalajala Ratnagiri Choudary S/o.Raja Rao R/o.MIG-117, Road No.1 KPHB colony Hyderabad, rep.by his father and natural guardina Sri.N.Raja Rao ..... PETITIONER AND 1 The Board of Intermediate Education of AP., vidya Bhavan, Nampally,Hyderabad, rep.by its Secretary 2 The Vice Chairman, Board of Intermediate Education of AP. Vidya Bhavan, Nampally,Hyderabad 3 The Controller of Examination, Board of Intermediate Education of AP., Vidya Bhavan, Nampally,Hyderabad 4 The Principal,Sri Vaishnavi Junior college Chanda Nagar, Ranga Reddy District 5 The Principal, M.N.r.Junior College, Lingamaplly Ranga Reddy District .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue writ or order more particularly one in the nature of writ of mandamus declaring the order in Rc.No.499/C25- 3/IPASE.May/June.2008 dated 6.10.2008 passed by the 3rd respondent as illegal, contrary to law and arbitrary, and consequently direct the respondents 1 to 4 to permit the petitioner to prosecute and appear for the second year Intermediate Public Examination –2009. Counsel for the Petitioner : MR. VENKATESWARLU POSANI Counsel for the Respondents : KUM. C.SINDHU KUMARI The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.709 OF 2009 ORDER : The petitioner herein is a student of Intermediate with M.P.C. group in the 4th respondent college. He passed all the subjects/papers of 1st year and secured 368 out of 470 marks. Since he secured more than 75% he was conferred with ‘A’ grade. However, the petitioner had chosen to appear for Mathematics Paper-I(A) and I(B) and Physics Paper in the Advanced Supplementary Examinations held in the Month of May/June, 2008 for betterment. When the results of the Advanced Supplementary Examinations were published, it was found that the petitioner’s result was not declared. On the other hand, a show-cause notice dated 14.08.2008 was issued by the 3rd respondent – Controller of Examinations – alleging that the petitioner had resorted to malpractice at the Advanced Supplementary Examinations held in May/June, 2008 and calling upon him to show- cause as to why his performance should not be cancelled and as to why he should not be debarred for two subsequent examinations. It was alleged in the show-cause notice that the pages 3, 4, 5, 6, 7 & 8 in his main answer book were torn and taken away by him and the same was confirmed by the Malpractice Scrutiny Committee. The petitioner submitted his explanation dated 5.9.2008 denying the allegations and stating that he never indulged in any such malpractice. However, the 3rd respondent, by order, dated 6.10.2008, while holding that the petitioner’s explanation was not satisfactory, cancelled the performance of the petitioner at the Intermediate Public Advanced Supplementary Examinations May/June, 2008. That apart, the petitioner was also debarred for two subsequent examinations i.e., Intermediate Public Examinations of March, 2009 to Intermediate Public Advanced Supplementary Examinations May/June, 2009. Against the said order, though the petitioner preferred an Appeal before the 2nd respondent on 29.10.2008 within the stipulated time, the same was not considered and merely kept pending. In the circumstances, the present writ petition is filed seeking a declaration that the order of the 3rd respondent dated 6.10.2008 is arbitrary and illegal. I have heard the learned counsel for both the parties and perused the material on record. The learned counsel for the petitioner vehemently contended that the show-cause notice itself was extremely vague and it was not even specified in respect of which paper alleged malpractice was committed. While submitting that the petitioner is a brilliant student and he appeared for the Advanced Supplementary Examinations only for betterment and that the alleged malpractice was absolutely false and without any basis, the learned counsel for the petitioner contended that the impugned order is arbitrary and illegal. In the counter-affidavit filed on behalf of the 1st respondent, the fact that the petitioner had secured 368 marks out of 470 in the 1st year examinations and that he had appeared for the Intermediate Public Advanced Supplementary Examinations in May/June, 2008 for improvement has not been disputed. However it is stated that while valuing the answer script of Mathematics Paper-I(A) of the petitioner, it was found by the Assistant Examiner/Chief Examiner that from the original answer book the page Nos.3, 4, 5, 6, 7 & 8 were torn and no answers were found in the remaining pages. Accordingly, the original answer script of Mathematics Paper-I(A) of the petitioner was sent to the 1st respondent Board to take further action. Thereafter, the said answer script was placed before the Malpractice Scrutiny Committee which had confirmed the guilt of the petitioner. Pursuant thereto, a show-cause notice was issued and after considering the petitioner’s explanation the impugned order was rightly passed imposing the punishment. The answer script of the petitioner in Mathematics Paper-I(A) has been placed before this Court by the learned counsel for the 1st respondent. The entire answer script is found to be blank and the page Nos.3, 4, 5, 6, 7 & 8 are torn off. At page No.2 of the answer script, an endorsement dated 6.6.2008 was found to be made by the Chief Examiner at the time of valuation of the answer script as under : “It is found that the papers pertaining 3, 4, 5, 6, 7, 8 teared. No answer is found in remaining pages.” So far as malpractices by the candidates are concerned, in exercise of powers conferred under Section 9 of A.P. Board of Intermediate Education Act (Act 2 of 1971) Regulations are made prescribing the scale of punishments to be awarded to the candidates resorted to malpractices. Clause 12 of the said scale of punishment runs as under : 12. Taking away the answer books or leaving the examination hall without handing over the answer books to the invigilating staff, whether returned subsequently or not or tearing away the answer books. Expulsion from the examination hall and debarment for the rest of the examinations. In the case of the first year student, he/she shall not be promoted into second year. CANCELLATION OF PERFORMANCE AT THE CURRENT EXAMINATION AND DEBARRING FROM APPEARANCE IN TWO SUBSEQUENT EXAMINATIONS. While relying upon the above Regulations, the learned counsel appearing for the 1st respondent contended that sine it was found by the Malpractice Scrutiny Committee of Intermediate Public Advanced Supplementary Examinations May/June, 2008 that the petitioner was guilty of malpractice, the impugned punishment was rightly imposed. It is true that some pages were torn from the answer book of the petitioner, but admittedly the same was not detected by the Invigilator in the examination hall either at the time of writing examinations or when the answer book was handed over by the petitioner to the Invigilator. Though the Invigilator concerned is expected to verify the answer sheets while receiving the same from the candidates, admittedly no such procedure was followed and there was absolutely no material to show that the petitioner himself had torn the missing pages from the answer book. Even according to the respondents, the fact that some of the pages were missing was detected only at the time of the valuation of the answer papers at the spot valuation. In the circumstances, the question is whether the alleged malpractice against the petitioner can be held to be established. As rightly pointed out by the learned counsel for the petitioner it was not even specified in the show-cause notice in respect of which paper the alleged malpractice of tearing the pages from the answer sheet was committed. It is also relevant to note that the petitioner had appeared for the Advanced Supplementary Examinations for betterment of the marks in some of the papers and he is not a student who had failed in the first attempt. It is not in dispute that so far as the students who appeared for betterment are concerned the highest marks obtained in either of the examinations i.e., the final examinations or supplementary examinations will be taken into consideration. In the totality of the facts and circumstances and particularly having regard to the fact that it is not known who had torn the pages and how it had happened, I am of the opinion that the respondents were not justified in concluding that the petitioner was guilty of malpractice. Consequently the impugned order dated 6.10.2008 being arbitrary and illegal is liable to be set aside. It is to be noticed that during pendency of this writ petition, by virtue of the interim orders granted by this court dated 9.2.2009 the petitioner appeared for the 2nd year Intermediate Public Examinations, 2009 including Practical examinations held in March, 2009 and his results are yet to be declared. For the aforesaid reasons, the impugned order dated 6.10.2008 is hereby set aside and the Writ Petition is allowed as prayed for with a direction to the respondents to declare the results of the petitioner for the 2nd year examinations held in March, 2009 forthwith. No costs. ______________ G. ROHINI, J. Dt. 22.06.2009 gbs