{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5161 OF 2009 Prashant Chandrakant Ghodke Minor u/g of his father Chandrakant Tukaram Ghodke R/o Bhushan Nagar, Kedgaon, Ahemdnagar PETITIONER VERSUS 1. Maharashtra State Board of Secondary and Higher Secondary Education Shivaji Nagar, Pune Through its Divisional Chairman RESPONDENTS 2. The Secretary, The Regional Board Maharashtra State Board of Secondary and Higher Secondary Education Pune Division, Pune ....... Mr.S.R.Andhale, Advocate for the petitioner Mr.D.V.Soman, Advocate for respondents No.1 and 2 ....... [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] DATE : 29th August 2009 ORAL ORDER (PER A.V.POTDAR, J.): 1. By the present petition, under Article 226 of the Constitution of India, the petitioner has prayed for directions to the respondents to produce record, including answer sheet of the petitioner {2} of Algebra paper held on 19.3.2009, reports of flying squad, examiner and the enquiry committee before this Court. 2. The petitioner has also prayed for issuance of a writ of mandamus directing the respondents to declare the result of the petitioner for the SSC examination held in the month of March 2009 and to quash and set aside the order dated 25.06.2009. The petitioner has also prayed to consider the representation dated 07.07.2009 along with the earlier performance of the petitioner. The petitioner has further prayed to direct the respondents to assess the performance of the petitioner of Algebra paper held on 19.03.2009 on the subsequent answer book and to declare result thereof. 3. According to the petitioner, the petitioner is the meritorious student and has appeared for the SSC examination in the month of March 2009. It is alleged that the flying squad questioned the petitioner, when the squad visited the examination hall and petitioner was writing paper of algebra, about the piece of paper alleged to be found in his possession. By that time the petitioner had completed writing of answer of one question. It is alleged that the petitioner was taken to the Chief Invigilator’s office where he replied the allegations satisfactorily. The answer book was taken by the Chief Invigilator and the petitioner was provided with fresh answer book. According to the petitioner he has successfully written the Algebra paper on the second answer book. It appears that the respondents served a notice on petitioner on 31.03.2009 intimating him to submit his reply along with documents on which he wants to rely, as regards the charges leveled against him. The petitioner replied to the said notice on 07.04.2009 contending that he has not {3} committed any malpractice as alleged by the respondents. According to the petitioner, the respondents, without taking the submissions into consideration, debarred the whole performance of the petitioner by letter dated 25.06.2009. Subsequently, the petitioner has also submitted a representation on 07.07.2009, which was also not at all considered by the respondents and hence the present petition is being filed. 4. Today, when the matter appeared on board, learned counsel for respondents produced the entire record in respect of the inquiry conducted by the respondents, for our perusal. 5. Heard learned counsel for the parties. 6. During the course of submissions, it is contended by the learned counsel for the petitioner that considering the past merit and performance of the petitioner it is clear that the petitioner is a meritorious student and it is not possible that he might have indulged in any malpractice, as alleged. It is also contended that the piece of paper, which was allegedly recovered from the possession of the petitioner was not actually recovered from him, however the same was found lying near the window, which was by the side of the seat which was allotted to the petitioner in the examination hall. It is contended that the petitioner has properly explained about the finding of the piece of paper not from him but the same was lying at the window and without considering this reply, the respondents have debarred the petitioner form SSC examination even without assigning proper reasoning. 7. Learned counsel for the petitioner has contended that by {4} assessing the second answer sheet of the petitioner the result be declared and the impugned order be quashed and set aside. As against this, it is contended by learned counsel for respondents that the record, which is produced in the court in respect of the enquiry, speaks about the involvement of the petitioner in the malpractice for which show cause notice was served on him and even the explanation immediately given by the petitioner in the examination hall after he was caught by the squad also indicates his involvement in the malpractice during examination. 8. On perusal of the record produced today it is clear that immediately after the petitioner was apprehended by the flying squad he admitted his guilt that the piece of paper was recovered from him for which he may be pardoned. Seat number of the petitioner was C-122437. Statements of the students, whose seat numbers were C-122438 and C-122436, who were adjacent to the petitioner, were also recorded and the same show that the petitioner was caught while coping and the piece of paper was recovered from his possession. Statement of one more student having seat No.C-122442 was also recorded which shows that the copying material was recovered from the petitioner. Statement of Supervisor, who was present in the examination hall was also recorded which shows that the copying material was recovered from the compass box of the petitioner. Initially, it was reported by the Supervisor that the petitioner was doing copy and later on he has changed the word and instead of “doing the copy” written as “not doing the copy”. The Marathi word “Hota” is changed as “Navhata”. It appears that in the report submitted by the Chief Conductor it is stated that the copying material was recovered from the petitioner. The flying squad in its report has stated that the petitioner was caught red handed while copying and the {5} Supervisor had neglected the act of the petitioner. It is also directed that the Chief Conductor of the examination center to take necessary action as per rules. It appears that accordingly report was submitted by the Chief Conductor to the board. Show cause notice was served on the petitioner to which he gave reply on 07.04.2009 and 16.04.2009. In the said replies the petitioner has denied the allegations leveled against him. However, the explanation given by the petitioner immediately after he was caught by the flying squad will prevail over the explanation offered by him after a considerable time, in reply to the show cause notice. It is also required to be considered that the reply is given afterthought 9. While deciding the petition filed by students facing SSC/HSC examination, Division Bench of this Court, in the identical set of facts, in the judgment delivered on 21.02.2003 in writ petition No. 3423/2002, has observed that if the copying material is proved to be recovered from the student, then he is to be held guilty for malpractice during the examination. Similar view is taken by the Apex Court in the matter of “Director (Studies) and others V/s Vaibhav Singh Chauhan reported in 2008 (57) BLJR 214 : 2008 (14) SCALE 554 : 2009 (1) JCR 145 (SC). The facts of the case before the Apex Court are identical with the facts of the case in hand. It is observed in para 5 of the said judgment that “the malpractice case based on the seizure of the slip was initiated against the respondent by the Examination Committee of the appellant Institute. In his statement dated 19.04.2005 before the inquiry the respondent admitted that the slip which was seized from his possession was in his own handwriting. Thus, he confessed the charge against him. However, he pleaded that he was extremely sorry for the misdeed and would not repeat it again.” In the case in hand also the {6} petitioner has given his statement in his handwriting immediately after he was caught by the flying squad when the copying material was recovered from his possession. Instructions are also given, to the candidates who have appeared for the SSC examination, on the overleaf of the first page of the answer sheet itself. Instruction No.16 (a) states that in case any book, notes or any piece of written paper or anything written on the clothes or body of the candidate is found then he will be held liable for penal action. Thus, it is clear from the said instruction that the candidates are made aware that it is prohibited to bring any book or written piece of paper in the examination hall. In the present case the inquiry committee has positively concluded that the written piece of paper of Algebra paper was recovered from petitioner which is also produced before us along with the report of the committee. In the premise, we find that the action taken by the respondent Board is reasonable and no interference is required in the extra ordinary jurisdiction under Article 226 of the Constitution of India. 10. For the above discussion, the writ petition, which is devoid of any merits, is dismissed with no order as to costs. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/wp5161-09