1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 399 OF 2008 Shri Derek Richard Constancio Quadros .... Petitioner V e r s u s 1. State of Goa, by its Chief Secretary, & others. ....Respondents Mr. Agnelo F. Diniz, Advocate for Petitioner. Mr. S. R. Rivonkar, GA for Respondent nos. 1, 3 and 4. Mr. S. N. Joshi, Advocate for For R-2. Mr. Francis Braz, Principal of Respondent no. 5 in person. Coram:- S. C. DHARMADHIKARI & SANTOSH BORA, JJ. Date:- 13th August, 2008 ORAL ORDER By this petition under Article 226 of the Constitution of India, the petitioner prays for Writ of Mandamus commanding and directing the respondents to cancel/revoke the examinations conducted in August 2007 and hold the same afresh within a time bound period. At the out set, learned Counsel appearing for the petitioner does not pray for any relief in terms of prayer clause (a) of the petition. In other words, the 2 petitioner does not seek cancellation of the results or the examination as a whole. 2. Now, the grievance which has been projected is with regard to prayer clause (b). That prayer seeks an enquiry into the conduct of the examination for the Tourism and Hotel Management course conducted by Human Resources Development Foundation in August 2007 and the persons involved in the irregularities committed in the conduct of the examination, be prosecuted in accordance with law. 3. The first respondent is the State of Goa whereas second respondent is a Society registered under the Societies Registration Act, 1960. It holds examination for various trades including for Tourism and Hotel Management courses conducted by various institutions in Goa. One such institute is respondent no.5. Respondent no.2 has been set up by Government of Goa and consists of persons appointed by it. It nominates the other person so also the Governing Board. Member Secretary and Treasurer of respondent no.2 are appointed by respondent no.1. It is undisputed before us that the Government of Goa exercises deep and pervasive control over respondent no.2 and respondent no.2 could be safely termed as its agency or instrumentality. 3 4. Para 2 of the petition sets out the sailent features with regard to composition and functioning of respondent no.2 and averments in that regard too are not controversed. 5. It is contended before us that an examination for Tourism and Hotel Management Course was scheduled to be held by respondent no.2 on 23.07.07. The petitioner was a candidate appearing for the examination. He was given a hall ticket but it is his grievance that one day prior to commencement of the examination, the candidates were informed that the examination is postponed. The examinations were of 9 institutes including respondent no.5. Petitioner along with the students protested against this postponement and ultimately, the examinations were re-scheduled and to commence from 20.08.07. 6. The Dy. Commissioner of Labour was appointed to conduct the examination but his appointment was made on the eve of the examination is another grievance. By this time, question papers were already set by the Foundation and State Directorate of Craftsmen Training to be held in three centres i.e. Panaji, Mapusa and Margao. It is the grievance of the petitioner that the examinations were conducted without framing any rules or regulations. 4 7. Para 4 of the petition reads thus : "The petitioner states that in the postponed examination, the following irregularities occurred which rendered the examination itself a farce. (al) The Petitioner states that there was gross discrimination as two differing papers were given for the same Front Office subject wherein of the total of 68 students who answered 49 were given a particular paper and 19 were given another paper. Annexure P9 is a copy of the letter dated 11th January 2008 stating that 49 and 19 students answering two different questions papers. These two differing question papers along with the forwarding letter dated 6/12/2007 are hereto annexed as Annexure P-10 colly. (a2) It may be noted that there were students of 4 Institutes answering the Hotel Management Trade examination ie (i) Musthifund Panaji, (ii) School of Management Curtorim, (iii) IHMCT Mapusa and (iv) TAME Margao. For the said subject Front Office, the question paper for the students of the Institutes at (i) to (iii) above, consisted of 7 questions of 100 marks with a choice to answer 5. Annexure P-11 colly are copies of the forwarding letter and relevant question papers of subject Front Office. However, for students of TAME, the question paper for Front Office consisted of 10 compulsory questions of 100 marks (as set out in the said Annexure P-10). Further, the said 5 question paper for Front Office answered by TAME students (including the petitioner) were taken back by the examination supervisor and attached to the answer sheets, thus leaving no immediate proof for the petitioner and his colleagues, which itself speaks of the highhandedness and injustice caused to the students of TAME. Indeed students like the petitioner who had earlier protested against the postponement of examination who sat in a block were given different paper (ie a more difficult one, that those who sat in other blocks for the same subject, perhaps to penalise the agitating students (including the petitioner). (b) The petitioner states that even the time table set was faulty as the same subject Catering Management, which is common to two different trades was listed on two different dated i.e. 21/8/07 for students of Food Production and 24/8/07 for students of Hotel Management, and worse still, the same question paper for the subject Catering Management was given to students on different dates of the same examination. Annexure P-12 is a copy of Time Table reflecting two different dates for the same subject. Both the question papers are hereto annexed as Annexure P-13 colly. In other words, students who sat at a later stage for the same examination, were given the same question paper which was answered by the students a day/couple of days prior thereto. In other words, the students 6 who answered at a later stage were at an advantageous position and were given the benefit of the said same question paper. As a result, students of some institutes were also at an advantageous position, as they got the benefit of answering the same paper which have already been given a day or days earlier." 8. It is contended before us by learned Counsel appearing for the petitioner that along with several students, petitioner protested against their irregularities including the allotment of marks in the question papers for each question, which allotment was made haphazardly. There were representations made to the Government and the Asst. Controller then wrote a letter dated 04.10.07 copy of which is annexed at P-15. The petitioner waited for some favourable response or atleast an assurance from responsible quarter but nothing being forth coming, he ultimately approached this Court seeking above relief. 9. An affidavit in reply has been filed by respondent no.2. In the said affidavit, it has been pointed out that steps were taken to conduct the examination and a Circular was issued on 16.05.07 to Principals of all Vocational Training Institutes. The circular dated 16.05.07 was not complied with by some of the Institutes including the concerned institute (respondent no.5), we are not concerned with the 7 alleged non-compliance of the Government Circular by respondent no.5. That is an independent matter. However, the affidavit of respondent no.2 does not dispute that the irregularities occurred and there were two different papers for the same Front Office subject. The grievance is that a total of 68 students who answered the exams, 49 were given a particular paper and 19 were given another. There is only one question paper set. In Para 16 of the affidavit of respondent no.2, it is admitted that the irregularity and the discrepancy occurred, Government conducted enquiry and found that second paper answered by 19 students was the paper which was answered by different institutes at a different centre one month earlier i.e. 23.07.07. Based on the report, the Government decided to warn the Controller of Examination and the dealing hand. They have been transferred out of the examination cell. 10. Learned Counsel appearing for respondent no.2 invited our attention to Para 21 of this affidavit and it is contented by him that in order to improve the management of the affiliated Institutes and Examination system, steps have been initiated and guidelines are issued. 11. Thus, the institute does not dispute that the irregularity and the discrepancy occurred as alleged. Respondent nos. 1, 3 and 4 have 8 filed an affidavit in reply and it is fairly stated by Shri Rivonkar, Government Advocate, before us that the Government also does not dispute that the examination which was conducted in August 2007 disclosed that one question paper was answered by 49 students and another question paper set in the same subject by 19 students. The Government Advocate states that Labour Commissioner has taken over the conduct of the examination and other matters very recently and, therefore, now the respondent no.3 is once again put in charge. The learned Government Advocate on instructions makes a statement that the enquiry has been held. Irregularity has been taken note of by the Government. He invited our attention to Paras 22 and 23 of affidavit in reply of the respondent nos. 1, 3 and 4. 12. With the assistance of the learned Counsel appearing for the parties, we have perused the petition and the annexure thereto. We have also perused the affidavit in reply along with other annexures. We have heard the Counsel extensively. 13. All actions of the Academic Bodies and Education Department have to be fair, just and reasonable. They should not be arbitrary and discriminatory. They should abide by the mandate of Article 14 of the Constitution. It hardly needs to be emphasized that 9 when an examination is conducted by a public body and when students are appearing for such competitive examination in the present age, due care and caution has to be taken by all concerned so that the career prospects of the students are not adversely affected. Considering that specific Technical courses are contemplated for preparing the students for employment in sectors such as Tourism and Hotel Management in Tourist friendly States like Goa, then, the responsibility of the authorities is much more. Further, large scale unemployment is a problem is to be tackled by the State. The State in its wisdom has been providing better employment opportunities to a large section of unemployed and hence commenced courses in Hotel and Tourism Management. The State has permitted private participation and even registered Institutes accordingly. Students have been enrolled by such institutes. However, the examinations are admittedly conducted by a State agency. The student community has faith and trust in the system because the examination is entrusted to a Academic Body controlled by the State. The Department of Education of the State of Goa so also Institute like respondent no.2 being set up by the Government, are in charge of setting of papers and all aspects of examination. They conduct the Examinations and declare the results. There is an implied guarantee that the Examinations would be fair and free. When instances of the present nature are noticed, then, it is further responsibility of all 10 concerned to take corrective measures and avoid such events in future. Ultimately, Teaching and Examinations are part and parcel of the Academic Curriculum. Unless the students who undergo training are examined and are tested before they are conferred with Degrees and Diplomas, it would not be possible for them to get enrolled to courses of further higher studies or seek employment. In such circumstances, the conduct of a fair and impartial examination is something which concerns and effects the students vitally. The instances of the present nature have to be avoided at all costs so that the students do not suffer. 14. The petitioner in all fairness states that it is disclosed to him that he has passed the examination. It is also stated before us that other 19 students have passed. However, that is no solace as larger matters of general public interest are involved as well. It is not as if one examination being conducted irregularly and an enquiry initiated into the same or action taken is enough. The steps have to be taken by all concerned to avoid such contingency and event in future. 15. After taking instructions, learned Government Counsel makes a statement that despite all enquiries till date, the Secretary, Department of Education, Government of Goa, will conduct an inquiry afresh into the irregularities more particularly those highlighted in Para 4 11 of the petition. The enquiry will be initiated as expeditiously as possible and within a period of three months from today. He furher states that the State will also set up Grievance Redressal Mechanism consisting of High Powered Officials and Independent Educationists and Experts so that the student community can raise their grievances instead of approaching this Court straight away. The Grievance Redressal Community be set up within the above period. 16. Lastly, what remains is issuance of mark sheet of the petitioner and other students. It is stated before us that all mark sheets are not made available. 68 students have appeared for examination through respondent no. 5 and the grievance is that none have got the marksheet. The mark sheets are ready and are presently lying with respondent no.2. The respondent no.5 appearing through its Principal, who is present in Court, makes a statement that respondent no.5 will collect the mark sheet of the 68 students appearing through respondent no.5 from the office of respondent no.2 latest by tomorrow i.e. 14.08.08 and distribute them to all students on or before 19.08.08. 17. In the light of the statements made which have been duly accepted by us and further enquiry being now directed to be held, we do not see any other grievance which needs to be redressed through this 12 petition. The petition, therefore, need not be kept pending and by consent of parties, it is disposed off with the above directions. 18. As far as directing payment of costs are concerned, we direct that as the petitioner and the concerned students having suffered on account of Irregularities in the examination conducted by a State Body, it is desirable and in the interest of justice that respondent nos. 1 to 3 pay costs of Rs.5,000/- to the petitioner. Costs to be paid within two weeks. The grievance of respondent no.5, if any, against the Government and the powers Government Authority to take action against Institutes like respondent no.5, are all matters which will be kept open and be dealt with irrespective of the outcome of the petition. S. C. DHARMADHIKARI, J. SANTOSH BORA, J. arp/*