IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1113 of 2006. Judgment reserved on : May 15, 2007 Date of Decision: September 10, 2007. Arya Pratinidhi Sabha through its Manager and another . ..Petitioners. Versus State of H.P. and another ……Respondents. Coram The Hon’ble Mr. Justice V.K. Gupta, Chief Justice. The Hon’ble Mr. Justice V.K. Ahuja , Judge. Whether approved for reporting?1 Yes For the Petitioners: Mr. Surinder Sharma, Advocate. For the Respondents: Mr. M.S. Chandel, Advocate General with Mr. J.K. Verma, Dy. Advocate General for respondent No. 1. Mr. Lovneesh Kanwar, Advocate for respondent No.2. V.K. Gupta, C. J. A very thoughtful, a very well intentioned, well meaning and purposeful observation, couched in a directional manifestation, by this Court has not been only twisted out of context by the respondents but distorted beyond recognition, totally and patently contrary to the spirit in 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 which it was made, defeating and frustrating the very purpose for which it had been issued. Let us notice relevant facts first. In a Writ Petition filed under Article 226 of the Constitution of India, being CWP No. 92 of 2006, by an Educational Society with respect to a dispute arising out of the matters relating to the grant of affiliation by the H.P. Board of School Education ( hereinafter referred to as “the Board” for the sake of brevity) and condemning therein ( in the Writ Petition) the deplorable state of affairs prevalent in the State of Himachal Pradesh with respect to the manner in which Schools are being run and granted affiliation by the Board, a learned Single Judge of this Court vide his judgment dated 25th May, 2006, after making certain pertinent observations, issued a few directions qua the State as well as the Board. One of such directions, being specific was as under:- “15) Keeping in view the tendency of the private schools to encourage copying the Board may issue directions that the private schools shall not be declared as Centres of examination for their own schools.” It must be clearly marked and very carefully noted as well as understood that all that this Court had said and meant in the aforesaid direction was that with a view to curb the tendency of private schools to encourage the adoption of unfair means in the examinations, such as copying etc., the Board may issue a direction that the private schools shall not be declared as Centres of examinations for their own pupils/ students. (Emphasis supplied by us). And quite purposely so because this Court rightly was of the opinion, based on its past experience as well as 3 its understanding of the situation that if students/ pupils of a school take a Board examination within the precincts of their own school, after their own school is declared by the Board as the Centre of examination for its own students, there is a likelihood, an apprehension of the Management as well as the Teachers and the staff members of that school helping the students in adopting unfair means in that examination. We are careful in using the expressions “likelihood” and “apprehension” and we must hasten to add that this “likelihood” or “apprehension” may or may not be there and that it would apply with equal force to private schools as well as the schools run by the Government/ the State. We are saying so because we are not oblivious of the ground reality that the Management of any Institution, be it a privately run Institution or a Government run Institution may have the aforesaid tendency to help its own students in adopting unfair means to achieve better results in the examination. The aforesaid direction of this Court in CWP No. 92 of 2006 appears to have been considered by the Board in its 86th meeting held on 19th July, 2006. Item No. 20 of the agenda items in the aforesaid meeting related to the aforesaid direction of this Court and the following resolution was passed/ adopted in the aforesaid meeting in so far item No. 20 was concerned. We quote :- “Item No.20: The instructions passed by the Hon’ble High Court of Himachal Pradesh in Court Case No. 92/2006 regarding affiliation to the Privately managed institutions – information regarding. The Board perused the instructions given by the Hon’ble High Court of Himachal Pradesh in C.W.P. No. 92/2006. On the instructions passed against No.15, the 4 members observed that the examinees of all privately managed institutions be seated in the examination centres created in Government schools. In case of paucity of seating capacity in a nearby Government school, the Chairman Board of School Education may take appropriate decision.” There is absolutely no doubt that the aforesaid direction issued by this Court in CWP No. 92 of 2006 and the aforesaid decision taken by the Board in its meeting held on 19th July, 20006 were not only in conformity with each other but the Board’s aforesaid decision in letter and spirit followed the aforesaid direction of this Court because the Board itself was of the opinion that the examinees of all privately managed Institutions be seated in the Examination Centres created in Government schools. It is to be carefully noted and marked that the aforesaid decision of the Board did not lay down or hold out that the privately managed Institutions shall cease to be declared and used as Examination Centres for conducting all the examinations of the Board, even with respect to the students of other Institutions. What followed after the aforesaid two self-complementary and meaningful decisions, one taken by this Court and the other by the Board was a total negation of the both of them. The action following the aforesaid two decisions was not only in total derogation of the aforesaid two decisions but defeated and frustrated the very purpose as well as intent thereof. On 1st September, 2006 the Board issued a Notification bearing No. HB/17/Conduct-I/2006-07-21107 whereby it notified that the Examination Centres established in as many as 130 privately managed 5 educational Institutions were permanently closed with immediate effect. The text of the Notification runs like this:- “It is notified that the following examination centres established in the privately managed educational institutions are hereby permanently closed with immediate effect.” The Notification, below the aforesaid text, contained the names and particulars of as many as 130 Institutions whose examination centres were closed with immediate effect. In the later part of the said Notification the Board also decided to close the Examination Centres of other 9 Institutions but on the specific ground that these nine Institutions had indulged in mass copying and other irregularities in March, 2006 examinations. The text of the later part of the Notification reads thus:- “Apart from the above, the following examination centres are hereby closed for mass copying and other irregularities March, 2006 examinations:-” Below this text was a mention of the names of these 9 Institutions. It may be noticed that with respect to 130 Institution there was no allegation of either mass copying or committing any irregularity. This position (of these 130 Institutions) was in clear contradistinction to the aforesaid 9 Institutions. Vide communication No. HB/17/Conduct-I/2006-21108-21237 dated 2nd September, 2006 from the Secretary of the Board, addressed to the Principal of the petitioner Institution, an intimation was sent that the Board had cancelled the facility of Examination Centre granted to the 6 petitioner’s Institution for “various reasons”. The text of this communication reads thus:- “You are informed that the Board has cancelled the facility of examination centre granted to you for various reasons. You are, therefore, requested to mention the nearest Government school as centre of examination in the admission forms of the examinees for the forthcoming examinations.” As is evident, “various reasons” were neither mentioned, nor spelt out, in the communication nor disclosed to the petitioner. On 4th September, 2006 the Department of Higher Education, Government of Himachal Pradesh sent a communication to the Secretary of the Board in which a mention was made about an announcement having been made by the Chief Minister of the State in the Legislative Assembly that the Board would be directed by the Government not to have examination centres in private schools and that accordingly, based upon the said announcement of the Chief Minister, the Government had taken a decision in terms of Section 11(1) of the H.P. Board of School Education Act, 1968 ( 1968 Act: for short) to advise the Board not to have Examination Centres in private schools and that Examination Centres in future would be set up only in Government Educational Institutions. The text of this letter reads :- “ I am directed to refer to the subject cited above and to say that while answering supplementaries to an Assembly Question, Hon’ble Chief Minister announced that H.P. Board of School Education will be directed not to have examination centres in private schools. 7 In view of above, the Government has taken decision in terms of sub-section (1) of Section 11 of the H.P. Board of School Education Act, 1968 ( Act No. 14 of 1968) to advise the Chairman/ Secretary, H.P. Board of School Education, Dharamshala not to have examination centres in private schools and in future, the examination centres be set up only in Government Educational Institutions. You are, requested to take further action in the matter as per decision taken above and compliance report be sent to this Department within a period of one month from the date of receipt of this communication.” The Board vide its communication No. HB/17/Conduct-I/2006- 21403 dated 21st September, 2006 dutifully informed the Government that it had in fact cancelled all the Examination Centres of privately managed Institutions and that in future Examination Centres would be set up and created in Government schools only. All the aforesaid actions of the Government as well as the Board have been impugned in this petition filed by Arya Pratinidhi Sabha and the Arya Girls Senior Secondary School petitioner No.1 and 2 respectively on various grounds including the violation of Article 14 of the Constitution of India. On 15th December, 2006 when this matter alongwith other connected Petitions came up for consideration before this Court, this Court after making some adverse observations against the respondents in the respondents’ misconstruing the direction issued by this Court in CWP No. 92 of 2006 (supra) directed the respondents to undertake a fresh study of the whole issue and reconsider the entire question and come up to this Court with a fresh proposal by the next date. 8 Two affidavits were filed, one on behalf of respondent No.1 ( on 1st January, 2007) and the second on behalf of respondent No.2 ( on 2nd January, 2007) in which these two respondents by referring to the aforesaid direction issued by this Court on 15th December, 2006 stated that even though they did reconsider the matter, they found themselves of the opinion that the impugned actions should be adhered to, maintained and be held sustainable and that there was no warrant or circumstance for changing the decisions taken by the Board as well as the State Government which are impugned in this petition. Para (2) of the affidavit filed on behalf of respondent No.1 by the Joint Secretary (Education), Government of Himachal Pradesh is apposite and we quote:- “That as per the aforesaid directions of this Hon’ble Court the matter was examined in detail jointly by the State Government and Himachal Pradesh Board of School Education. A meeting in this regard was held on 27.12.2006 at Dharamshala, the minutes of which are annexed herewith as Annexure A-1. All the aspects of closing the examination centre in the Private schools were examined in detail and it was decided that in order to conduct free and fair examination there should not be any examination centre in the private schools.” It is in the aforesaid background that this Court has now to consider and decide about the correctness, legality and validity of the impugned actions of the respondents. This Court has to consider and decide whether wholesale, blanket closure as well as cancellation of Examination Centres of all private run Institutions in the State is constitutionally permissible or it being an arbitrary action of the respondent is not sanctioned by the mandate of Article 14 of the 9 Constitution of India. If this Court finds itself of the opinion that the impugned actions of the respondents are constitutionally impermissible this Court has to devise ways and means, even while quashing and striking down the impugned actions, of ensuring that unfair means are not adopted in the examinations and that the Board in cooperation with the State Government as well as the Institutions concerned takes effective steps of ensuring free and fair conduct of all examinations in all the Examination Centres. First and foremost, we have to decide the question of maintainability of the Writ Petition by the petitioners. Can the petitioners, and for that matter the private educational institutions be deemed to be persons/ Institutions aggrieved in not being granted the facility of having examination Centres in their precincts? On the face of it, by way of first impression, as a matter of immediate reaction, it may be argued that non- grant of the status of examination Centre to a particular Institution cannot be considered as prejudicial to that Institution because such an action does not visit the Institution with any adverse consequence. This is more so in view of the fact that in normal circumstances students/ examinees belonging to the same Institution are not supposed to take examination of the Board in the precincts of the same Institution. On a deeper consideration, on a more substantive thoughtful process however we find that non-grant of the status of examination Centres to private Institutions has at least two adverse consequences as far as the Institutions are concerned. First and foremost the Institutions feel prejudiced in being denied the opportunity of holding examinations within their precincts, even for students belonging to the other 10 Institutions. Secondly, in the estimation of the public at large, and more particularly the members of the academic community these Institutions are unnecessarily maligned and condemned, being treated as unworthy of the confidence expected from Institutions of impartial neutrality. Not only this, a very important aspect is closely associated with selecting Institutions for being declared as Centres of examination and the actual conduct of the examinations in such Institutions. Using an Institution as a Centre of Examination, in effect and substance means the use of the precincts, the premises, the building as well as the infrastructure therein for conduct of the examinations. After all, the examinees have to be seated somewhere for taking the examinations and that place has to provide some basic infrastructure facilities to the examinees such as chairs, desks, clean and conducive atmosphere, light and air, electricity including the use of fans, toilets and drinking water facilities etc. etc. Not only this, for thousands and thousands of examinees the Board has to find sufficient accommodation available in every nook and corner of the State, both in urban, semi urban and rural areas. The precincts of educational Institutions, both private as well as Government run, provide this. The provision of the building, the infrastructure facilities etc. has by itself nothing to do with the conduct of the examinations because the conduct of the examinations such as provision including their selection, posting etc., of Superintendents, Deputy Superintendents, Assistant Superintendents, Invigilation staff, Inspectors, flying squads, checking teams etc. etc. are matters which should be and are the responsibility and the concern of the Board only . Like the Election Commission of India 11 entrusted with the responsibility of holding free and fair elections in every nook and corner of the Country, the Board has the responsibility and obligation of holding and conducting free and fair examinations and therefore it is for the Board to ensure that it provides the aforesaid facilities and take all such steps as are necessary for conducting free and fair examinations. Whether the Board uses the precincts or the premises of a private Institution or a Government Institution would not and does not make any difference for the Board because it is no body’s contention before us that the buildings, in other words the precincts or the premises, by themselves inherently contain any dubious apparatus providing for or catering to, either the adoption of unfair means or copying or committing any other irregularity. A building is a building. All buildings are similar. It makes no difference whether the building belongs to the Government or to a private Institution unless it is somebody’s contention that the buildings belonging to the private Institutions have some in-built, hidden mechanism which facilitate the adoption of unfair means. After all, it is neither expected nor desirable that the students belonging to an Institution should be asked to take examinations of the Board in an Examination Centre within the precincts of the same Institution. More importantly, the entire invigilation staff deployed in an examination Centre not has only to have impeccable credentials but is not supposed to be belonging to that Institution whose students are taking the examination. This would be a patent contradiction in terms. If however, in any particular, rare of the rarest cases where for some compelling reasons a particular Institution has to be declared as a Centre of Examination for its own students such as for reasons of topography 12 or non-availability of any other building within an area of few kilometers etc. etc., it is the duty of the Board to ensure that all possible steps are taken for deployment of invigilation staff in that building, members whereof not only have impeccable credentials but also have nothing to do with the students of that particular Institution and that no part of the Management of the Institution or any of its staff members is allowed to go anywhere near the examination Centre. We have in an earlier part of this judgment referred to the obligation and the responsibility of the Board for conduct of free and fair examinations. This obligation and responsibility not only have statutory sanction but are also of a binding nature. Let us have a look at these statutory provisions. The Himachal Pradesh Prevention of Malpractices at University, Board or Other Specified Examinations Act, 1984 ( 1984 Act: for short) is an enactment providing for prevention of malpractices at examinations of any University or the Board or any other specified Authority in the State of Himachal Pradesh. In Section 2(a) Board has been defined as Board of School Education for the State of Himachal Pradesh established under the Himachal Pradesh Board of School Education Act, 1968. In Sections 3, 4 and 5 some specified duties have been assigned upon persons appointed as paper setters at any examination including the persons entrusted with the task of printing of question papers. Section 5 clearly lays down that any person who is entrusted with the custody of any question paper for any examination shall not supply any copy thereof or communicate the contents thereof to any person except in accordance with the instructions given to him in writing in this behalf. Sub-section (2) 13 of Section 5 prescribes the punishment for violation of sub-section (1) thereof. Section 7 of 1984 Act deals with the prohibition of copying as well as impersonating at examinations. In the light of the submissions made at the bar on behalf of the Board, Section 9 of 1984 Act is very pertinent as well as relevant and important for our purpose because it clearly lays down that whoever entrusted with the conduct, supervision, evaluation of answer sheets etc. etc. refuses to discharge any function assigned to him shall be liable for punishment with imprisonment which may extend to three months but shall not be less than one month as well as fine. This Section assumes a very vital significance in the light of arguments advanced on behalf of the Board that quite often persons assigned invigilation duties in the examination centres do not turn up to perform their duties. Section 9 is a complete answer as well as a remedy with respect to all such persons. It is the bounden duty of the Board to invoke Section 9 in any case where it feels that persons entrusted with the conduct or supervision of the examination are refusing to discharge their obligations. Now, let us refer to another important provision of law. Section 10 of the H.P. Board of School Education Act, 1968 ( 1968 Act: for short) empowers the Board to, inter-alia, conduct examinations based on the Courses prescribed by it. It also empowers the Board to admit to its examinations, on conditions that may be prescribed by it, the candidates who pursue the prescribed courses of instructions. Clauses (1), (2) and (3) of Section 10 of 1968 Act are relevant for this purpose and we reproduce them hereunder for ready reference:- 14 “ Section 10. Powers and functions of the Board.-Subject to the provisions of this Act, the Board shall- (1) prescribe courses of instructions for school education in Himachal Pradesh; (2) conduct examinations based on such courses; (3) admit to its examinations, on conditions that may be prescribed, candidates who pursue the prescribed courses of instructions – (i) in recognized institutions; and (ii) privately; …………………………. ……………………………..” It is thus the obligation of the Board to conduct the examinations. Sections 10 opens with the mandatory as well as binding expression, “the Board shall”. It is therefore, the obligation as well as statutory duty of the Board to conduct examinations as well as to admit to its examinations the candidates. What therefore follows is that in all matters relating to the conduct of examinations the Board has to devise its procedure, has to lay down applicable and binding terms and conditions and create conducive and congenial atmosphere to ensure that all the examinations conducted by it are conducted in a free and fair manner because the duty to conduct examinations in effect and substance means a duty for proper conduct of examinations in a free and fair manner. The Board cannot escape its responsibility of conducting properly as well as fairly all the examinations in a free manner. On 14th May, 2007 Shri P. Mitra, Principal Secretary (Education), Government of Himachal Pradesh had filed his affidavit in the Court. In this affidavit, a reference was made to certain observations of this Court 15 made on 4th May, 2007. Paras 1 and 2 of this affidavit are apposite and we quote:- “1. That the above mentioned Civil Writ Petition is pending adjudication before this Hon’ble Court. This matter was listed on 4th May, 2007, when this Hon’ble Court observed that a meeting between the Principal Secretary (Education), Chairman of the Board of School Education and Secretary of the Board of School Education should be convened within a week and all the aspects should be discussed in such meeting and appropriate decision in this regard be taken. The office of ld. Advocate General conveyed the observations of this Hon’ble Court vide letter dated 04.05.2007. 2. That as per the observations of this Hon’ble Court a meeting was convened on 8th May, 2007 to discuss the question of making the private schools as centres of Examination by the Himachal Pradesh Board of School Education. The minutes of the meeting are annexed herewith as Annexure A-1. All the aspects of allotting examination centres were examined in detail and all the participants in the meeting unanimously felt that the decision not to have examination centres in private schools was a well considered one and that this should not be changed.” At the outset, we must record that the Order dated 4th May, 2007 does not record or reflect that any observation was made by this Court which means that on that date some oral observations might have been made in the course of