IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 635 of 2008 (M/S) Ajit Kumain S/o Gyan Chand, Resident of Village Chaund (Jaspur) P.O. Khandogi (Jakhnidhar), District Tehri Garhwal and nine others. ………. Petitioners. Versus Chairman Board of School Education Uttarakhand, Ramnagar, District Nainital and three others. …… Respondents. Sri N.S.Negi, learned counsel for the petitioners. Sri V.K.Bisht, Sr. Advocate, assisted by Ms. Sangeeta Miyan, learned counsel for the respondent no. 1 & 2. Learned Addl. C.S.C. for the State-respondent no. 3&4. Date July 30, 2008. Hon’ble B.S. Verma, J. Admit the writ petition. This writ petition has been filed for the following reliefs:- A. Issue a writ, order or direction in the nature of mandamus directing the respondents to produce the record of the petitioners Chemistry 1st Paper of Intermediate Examination 2007 which was held on 24.3.2007. B. Issue a writ, order or direction in the nature of certiorari to quash the order dated 04-7-2007 passed by the respondent No. 2 filed as Annexure No. 2. C. Issue a writ, order or direction in the nature of mandamus directing the respondent No. 2 to declare the result of the petitioners’ Intermediate Examination 2007 bearing Roll Numbers from 0025803, 0025804, 0025805, 0025811, 0025812, 0025815, 0025816, 0025817, 0025818, and 0025819 forthwith. d. Issue any suitable order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of the case. e. Award cost of writ petition to the petitioners. The impugned order dated 4-7-2007 was passed by the Secretary, Board of School Education Uttarakhand, Ramnagar District Nainital, whereby the Intermediate Examination 2007 of the petitioners was cancelled. Brief facts giving rise to the writ petition are that all the ten petitioners herein appeared in the Intermediate Examination 2007 conducted by the Board of School Education Uttarakhand, Ramnagar (Nainital) and Roll Numbers 0025803, 0025804, 0025805, 0025811, 0025812, 0025815, 0025816, 0025817, 0025818 and 0025819 were allotted to the petitioners respectively. Petitioners appeared in all the subjects as regular students from Government Inter College Bharetidhar, District Tehri Garhwal. On 26.3.2007 in second shift i.e. from 2.00 p.m. to 5.00 p.m. the examination of Chemistry I Paper was held and all the petitioners appeared therein peacefully and without any complaint they solved their paper and submitted the answer books to the room invigilator. The petitioners later-on came to know that their answer books and other items which were kept about 150-200 mt. Away from the examination center were taken away by the District Education Officer Tehri Garhwal-respondent no.3, who prepared the inspection report regarding the inspection of the said examination center on 26.3.2007 at 2.15 p.m. According to the petitioners no unfair material was found in possession of any of the examinee in the examination rooms. On the basis of the complaint submitted by the respondent no.3, Additional Secretary Board of School Education Uttarakhand Ramnagar passed the order on 28-5-2007 and directed the respondent no. 4 to inform all the students whose result of 2007 has been withheld to be present at 11 a.m. on 15.6.2007 in Government Inter College Srinagar Garhwal. The petitioners appeared before the Committee as directed. The Inquiry Committee supplied printed forms to the petitioners and some questions and queries were made in that printed form. The petitioners submitted their reply and denied the charges leveled against them. The grievance of the petitioners is that no unfair means of copying or material was recovered from the possession of the petitioners at the time of inspection by the Flying Squad on the relevant date and they were not given any show cause notice, but the respondent no. 2 cancelled the examination of the petitioners for the year 2007 vide order dated 4-7-2007. There is no positive report of mass copying by the petitioners. Counter Affidavit has been filed by the respondents and it has been stated inter alia in paragraph 7 that the Flying Squad under the Additional District Education Officer (Secondary) Tehri inspected the examination center Bharetidhar at about 2:40 p.m. The flying Squad found that examinees of room no. 8 were solving their question paper by sitting together and thus were involved in mass copying. There was no control of the invigilators over them. When the Flying Squad entered the room no. 7, the examinees hurriedly threw away the unfairmeans material which was collected by the members of the Flying Squad. The same was sealed and was sent to School. Education Board along with explanation of the Centre Superintendent and invigilators. On behalf of the petitioners Rejoinder Affidavit has been filed. The affidavit has been sworn in by petitioner no. 2 Arvind Chand Ramola. In the Rejoinder Affidavit the facts as stated in the writ petition have been reiterated and in paragraph no. 9 it has been stated that no opportunity of hearing regarding complaint of mass copying was given by the respondents to the petitioners/examinees. Neither any show cause notice was given to the petitioners nor any charges were disclosed before passing the impugned order of cancellation of examination of petitioners. In paragraph no. 4 of the rejoinder affidavit the following averments have been made:- “4. That the contents of para 7 of the counter affidavit are not admitted. It is submitted that on 26.3.2007, the Flying Squad under the District Education Officer Tehri inspected the examination centre and during the checking no unfair materials was found in the possession of examinees. Whatever the materials has been collected by the Flying Squad was from out side of the examination hall/rooms. It is pertinent to mention here that none of the petitioners/examinees were challenged during the checking nor their copies were sealed and second copy was also not issued to them. Nothing unfair materials was found from the examinees by the Flying Squad and examinees-petitioners peacefully solved their question paper upto prescribed period i.e. upto 5 P.M. The report of District Education Officer dated 18.4.2007 is also after thought. Nothing has been disclosed in the report and how the petitioners/examinees were copying, what was seat adjustment. If the contention of the District Education Officer are correct then why the copies of the examinees were not sealed immediately.” Learned counsel for the petitioners has vehemently submitted that it is an admitted fact to both the parties that the Flying Squad of respondents inspected the examination centre at about 2.20 to 2.40 p.m. on 26.3.2007 and the time of the examination was from 2.00 p.m. to 5.00 p.m. and no unfair means/material was found at the time of inspection from the possession of the petitioners. Learned counsel for the petitioners has vehemently contended that the respondents have filed copies of explanations obtained from the room invigilators, as Annexure No. CA-4, CA-5, CA-6 and CA-7. Even in these explanations, none of the room invigilators had named any particular examinee, who was found to have been in possession unfairmeans materials. The invigilators had shown their ignorance as to how the unfair means material was found at the time of inspection. In such circumstances, much credibility cannot be attached to these documents. Learned counsel has vehemently contended that had the petitioners been found to be sitting together at the time of inspection by Flying Squad of the respondents and doing mass copying in the second shift of Chemistry 1st Paper on 26.3.2007 or any unfairmeans materials was found from the examination room or the possession of the petitioners, the only proper course open to the respondents was to have sealed the answer sheets of the petitioners on the spot and the petitioners should have been issued fresh answer sheets then and there, but it has not been done. Even in the counter affidavit there is no whisper to the fact that as to why it was not found feasible to seal the answer sheets at the spot. According to the respondents the unfair means material was sealed by them but their answer sheets were not sealed then and there. Learned counsel for the petitioners further submitted that show cause notice was also issued in mechanical/ stereotype manner on a printed form. In support of his contention, learned counsel for the petitioners has relied upon the judgment of the Allahabad High Court in the case of Ram Sewak and others Vs. Board of High School and Intermediate Education U.P. [(1990) 3 UPSBEC 1820] wherein it has been held that the cancellation of examination on the basis of presumption of unfair means is not proper. The Allahabad High Court has quashed the order of cancellation of examination. Learned counsel for the petitioners further placed reliance upon the case of Pramendra Pal and others Vs. Secretary Examinations Committee [(1992) 2 UPLBEC 881]. In that case, the students were not found copying in the examination hall, nor they were found using unfair means by the invigilator or the Superintendent. High Court while allowing the writ petition directed the respondents by a writ of mandamus to declare the result of the petitioners. I have perused the averments made in the writ petition, as well as the counter affidavit and rejoinder affidavit including the annexures filed along with counter affidavit. From a perusal of record, it is evident that the Enquiry was also conducted in a mechanical manner and there is no evidence to the effect that the petitioners were using unfair means at the examination centre while they were solving their papers. In the course of arguments, the learned counsel for the petitioners has submitted that this Court has, in a similar circumstances, has allowed the Writ Petition No. 935 (M/S) of 2007, Annu Byas and others Vs. Chairman Board of School Education Uttarakhand, Ramnagar and three others vide order dated February 27, 2008 and the present writ petition is also on the same footing. Having considered the submissions made by the learned counsel for both the parties and having gone through the entire material on record, I find that no incriminating material or unfair means/material was recovered from the possession of the petitioners and the answer-sheets of the petitioners were not sealed at the time inspection by the Flying Squad. The very conduct on the part of the inspection team allowing the petitioners to continue with the same answer sheets till the close of the papers does not stand to reason, therefore, on that ground, no punishment order could have been passed against the petitioners. The enquiry into the matter was also conducted in a mechanical manner. Therefore, the impugned order is perverse and has been passed without application of mind by respondents. It is a fit case in which the respondents should be directed by a writ of mandamus to declare the Intermediate Examination 2007 result of the petitioners. The writ petition deserves to be allowed. The writ petition is allowed. The impugned order dated 4-7-2007 (Annexure No.2) by which the punishment order has been passed against the petitioners is quashed. The respondents no. 2 is directed to declare the result of the petitioner pertaining to Intermediate Examination, 2007 within a period of one week from the date of production of certified copy of this order. Costs easy. (B.S. Verma, J.) RCP