1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5004 OF 2009 Shaikh Lubna Fatima d/o. Mahboob Ahmed Age Minor u/g. Of father Mahboob Ahmed Layeek Ahmed, Age47 years, Occu: Imam Resident of Mughal Mohalla, Majalgaon, Taluka Majalgaon, District : Beed PETITIONER VERSUS 1. The State of Maharashtra Through Secretary, Education Department Mantralaya Mumbai. 2. The Divisional Secretary of Maharashtra State Board of Secondary Education and Higher Education Aurangabad Divisional Board, Aurangabad 3. The Head Master, (Deleted) Zilla Parishad High School for Boys Majalgaon, Taluka Majalgaon District : Aurangabad. RESPONDENTS Mr.A.N.Ansari, learned counsel for petitioner. Mr.V.H.Dighe, learned AGP for respondent no.1 Mr.A.R.Nikam, learned counsel for respondent no.2 Name of respondent no.3 is deleted. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) 2 RESERVED ON : 25/08/2009 PRONOUNCED ON : 27/08/2009 JUDGMENT : (Per A.V.Potdar, J.) 1. Rule. Rule made returnable forthwith. By consent of the parties, the writ petition is finally heard at the stage of admission itself. 2. By the present writ petition under Article 226 of The Constitution of India, the petitioner has challenged the order passed by the second respondent i.e. The Divisional Secretary of Maharashtra State Board of Secondary Education and Higher Education, Aurangabad Divisional Board, Aurangabad dated 05/06/2009 by which the petitioner was debarred for 3 years upto October 2011 from appearing in S.S.C.Examination. The petitioner has also further prayed for issue of directions to respondents to declare her result of the S.S.C.examination conducted in March 2009. 3. The facts which gave rise to file the present writ petition can be summarized as the petitioner was 10 th standard student and appeared for the S.S.C. Examination held in the month of March 2009. She had appeared for all the theory papers and the practical examination of the said S.S.C. Examination. On 25/04/2009, the respondent no.2, the S.S.C. Board served notice on her by which the petitioner was asked to remain present in the office of 2 nd respondent on 11/05/2009. It is stated in the said notice that there is change in ink and overwriting, but there is no specification shown in the said notice about the subject of which in the answer-book there is change in ink and overwriting. In response to said notice, the petitioner has attended the office of 2 nd 3 respondent on the given date alongwith her father. The paper of the subject English was shown to the petitioner. Her attention was drawn towards the last answer of the said answer-book and she was questioned as to who has written the reply/answer of the last question appeared on that page. According to the petitioner she had replied that the answer of that question was written by her in her handwriting and as the time was running, she has written the answer in haste. She was also questioned about the overwriting of the words to which according to the petitioner reply is that as her pen was not properly working, she has overwritten the words with another pen. According to her, there is no change in the ink. The entire paper was written in the ball pen. According to the petitioner, she had shown her willingness to right the answer again of the said question, but she was not asked to do so. The petitioner was asked to submit her explanation in writing. According to her, the person present during the inquiry has dictated the explanation which she wrote in Marathi language on which her signature was obtained. According to the petitioner, petitioner has not done any malpractice during the said S.S.C. Examination and prayed to pass the rule in terms as prayed for. 4. In response to the notice issued by this Court, 2 nd respondent appeared and filed the affidavit in reply of one Dattatraya Namdeo Kalkote, who was working as a Secretary in the office of respondent no.2 inter-alia contending that the petitioner appeared for the S.S.C. examination conducted by respondent no.2 in the month of March 2009 and was appeared for English Urdu Medium paper. It is further contended that the examiner who assessed the English language paper of Urdu medium, at the time of assessment found that on page no.11 of 4 the answer book, the answer of question no.8 was written in 3 lines and was in dark ink pen and the remaining 5 lines were in the different pen and looks like in the different handwriting. Accordingly the Chief Conductor of the said examination forwarded the report to the respondent Board. It is further contended that on the basis of the report submitted by the Chief Conductor of the examination, this respondent recorded the case of the petitioner by no.B-13 and accordingly show cause notice was served on the petitioner to appear for hearing before the Committee of the Board. According to the respondent, notice was also issued to the Invigilator and Chief of the Centre of Shri.Siddheshwar Vidyalaya, Mazalgaon, Dist. Beed calling them to participate in the hearing. It is further contended in the said reply that during the inquiry, petitioner explained “as the time was short, she has written the answer very fast due to which there may be change in the mode of writing.” The Invigilator of the Centre as well as the Chief of the Centre did not appear before the Inquiry Officer during the hearing inspite of due notice. It is further contended that after the decision of the Inquiry Officer, the Committee verified the decision of the Inquiry Officer, verified the proceeding alongwith the explanation offered by the petitioner and came to the conclusion that apparently there is difference in the handwriting of the last few lines of answer to question no.8 and hence the Committee awarded the punishment as per Rule 36 of the Punishment List 1 + 5 and canceled the performance of the S.S.C. Examination held in the month of March 2009 of the petitioner and debarred her to appear in S.S.C. Examination till October 2011. It is also contended that if the petition is entertained by this Court and granted the relief as prayed for, in such case, the other students who 5 have punished in the copying cases, also seek the same relief by approaching the Hon’ble Court and in that case, it is very difficult for the Board to maintain discipline in the examination system and ultimately prayed for dismissal of the writ petition. 5. In this background, heard respective counsels for petitioner and the respondents. 6. On the last date of hearing, directions were given to the learned counsel appearing for respondent no.2, the Board to keep the record present in the Court for our perusal, as well as the proceeding took place before the Inquiry Committee, who has inquired in the matter of malpractice allegedly committed as alleged by the 2 nd respondent which record was made available for our perusal. 7. On bare perusal of page no.11 of the answer book of the petitioner, it is apparent that there is difference in the ink used for writing of the first 3 lines at the upper portion of the page while the ink used for writing of the 5 lines at the lower portion of that page. The explanation to this effect offered by the petitioner as claimed by the petitioner as well as by the 2 nd respondent as a explanation given by the petitioner before the Inquiry Committee that due to constrain of time and the pen which she earlier used was not working properly, in hurry she has written this portion of the paper and as the pen used by her for writing the answer book was not working properly, she had written the portion on page no. 11 of the answer book with different pen. Thus she has not denied that two different inks pens used by her while writing the portion on page no. 6 11 in answer book to question no.8 of the said paper. Then only question remains for our consideration whether the upper portion as well as the lower portion was written by two different persons for which explanation offered by the petitioner that due to time constrain, in hurry she had written this portion. So fas as the Invigilator who was present on that date in the examination hall, even though summoned, did not appear before the Inquiry Committee. The Chief Conductor of the Centre of the Board was also not appeared before the Inquiry Committee inspite of due notice. On perusal of the finding recorded by the Inquiry Committee wherein it is observed that on verification of handwriting in the answer-book of the petitioner, there is difference in the handwriting, hence as per Rule 36, the performance for the S.S.C. Examination held in the month of March 2009 of the petitioner is canceled and she is further debarred to appear for the S.S.C. Examination till October 2011. So far as why the explanation offered was not accepted but rejected, we do not find any reasoning recorded by the Inquiry committee and that too in absence of examination of the Invigilator as well as the Controller of the Centre in which the petitioner had given the examination. According to us, the explanation given by the petitioner applicant is reasonable and plausible and without any cogent reason was not accepted by the 2 nd respondent and awarded the punishment to the petitioner by canceling her performance for the S.S.C. Examination of the month of March 2009 and further debarred her for appearing in the S.S.C. Examination till October 2011, which is harsh and hence liable to be quashed and set aside. 8. During the course of submissions across the bar, reliance is 7 placed by learned counsel appearing for 2 nd respondent on the ruling reported in (1991) 2 Supreme Court cases 716 in the matter of Maharashtra State Board of Secondary and Higher Secondary Education versus K.S.Gandhi and others, on the observations that , “the standard of proof is not beyond reasonable doubt but the preponderance of probabilities tending to drawn an inference that the fact must be more probable. Standard of proof, however, can not be put in a strait-jacket formula. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries.” Our attention is further drawn towards the observation that, “When the evidence justified the Standing Committee to record the finding that the examinees, parents or guardians were parties to the fabrication, it was not open to the High Court under Article 226 to itself evaluate the evidence and to interfere with the finding and to quash the impugned notification.” We are fully in agreement with the legal preposition as laid down in the said ruling by the Hon’ble Apex Court, but considering the facts and circumstances of the present case, even though in the exercise of extraordinary writ jurisdiction under Article 226 of The Constitution of India, we are not supposed to act like the Appellate Authority to evaluate the reasoning recorded by the Inquiry committee. At the same time, we can not shut our eyes if the explanation offered by the petitioner applicant is probable and just, then if without any reasoning, if that probable and just explanation is rejected without giving any reasoning, then in the extraordinary jurisdiction under Article 226 of The Constitution of India, the impugned order require interference. 8 9. For the reasons stated in the above paragraphs supra as well as from the record placed before us, we are of the opinion and view that the impugned order under challenge in the present writ petition is liable to be quashed and set aside and accordingly we hereby quash and set aside the order dated 13/07/2009 and hereby direct the 2 nd respondent to declare the result of the petitioner for the S.S.C. Examination conducted in the month of March 2009 forthwith if the petitioner is otherwise eligible for the declaration of her result. 10. In the result, the writ petition succeeds. The rule is thus made absolute in terms of prayer clause B & C. The writ petition stands disposed of accordingly with no order as to costs. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/AUGUST 2009/wp5004-09