HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Rajeev Gupta, C.J. & Hon ble Shri Sunil Kumar Sinha, J. Writ Appeal No. 41 of 2009 The Secretaiy, Madhyamik Shiksha Mandal and anofher Vs. Preed Choudhary and anofher ORDER -*4 il- For consideration -fl_. Sd/- SUNILKUMAR SINHA Judge Hon'ble Shri Justice Rajeev Gupta 3 Sd/- ChiefJ"stice Post for order : /(5 /04/2009 Sd/- /04/2009 83 HIGH COURT OF CHHATnSGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Suml Kumar Sinha, J. APPELLANTS Writ Apoeal No. 41 of 2009 1. The Secretary, Madhyamik Shiksha Mandal, Chhattisgarh, Raipur,Distt. Raipur (Chhattisgarh) 2. The Chairman, Madhyamik Shiksha Mandal, Chhattisgarh, Raipur, Distt. Raipur (Chhattisgarh). RESPONDENTS Versus 1. Preeti Choudhaiy, D/o Shri Dev Prasad Choudhary, aged about 20 years, Resident of Fool Chowk, near Devika Hotel, Jorapara, Raipur (Chhattisgarh) 2. The State of Chhattisgarh, through the Secretary, Madhyamik Shiksha Mandal, Chhattisgarh, Raipur (C.G). (Writ Aopeal under Section ZSub-Section (1) pfthe Chhattisearh High Court (Appeal to DivisionBenchl Act, 2006 Apoearance: Mr. Pankaj Agrawal, counsel for the appellants. Mr: Vijay Deshmukh, counsel for the respondent no.l. Mr. Sumesh Bajaj, Govt. Advocate for the State/ respondent no.2. •i • 'i V. 1 g^ W.A.No. 41 of2009 ORDER ( ;0.04.2009) Following order of the Court was delivered by Sunil Kumar Sinha.J, (1) Appelleints/respondents 2 & 3 in the writ petition have filed this appeal against the order dated 03rd of December, 2008 passed in W.P(C).P.R. No.6842/2008 by the learned single Judge of this Court. (2) The facts briefly stated are as under: Respondent no.l/petitioner appeared as a regular student,in Science Group in the Examination of Class XII of 2006 Session. She secured 354 marks out of 500 and was placed in Erst division. She again appeared in the same examination as a student of Division Improvement Group in 2007. As per the inter- net information, respondent no.l/petitioner passed this Examination with Erst division but despite her request she was not supplied with the marks sheet of the subsequent examination. It is on this cause of action, she Sled the instant writ petition for the foUowihgreUefs: "10. RELIEFISISOUGHT: In view of the facts stated above, the petitioner prays for the following relief(s) :- 10.1 That this Hon'ble Court please to bp directed to the respondenl; R/2 to issue petitioner's authentic mark sheet of Class 12 examination 2007 of division improvement wifhin limited period. 8^ W.A.No. 41 of2009 10.2 That this Hon'ble Courf please to be directed to cost of the petition be allowed. 10.3 Any other relief may also be granted to the petitioner which this Hon'ble Court feels fit in the facts and circumstances ofthe case." The said petition came up for hearing before the leamed single Judge on 3rd of December, 2008, on which, counsel for the appellants 2 & 3,in a normal manner, gave an undertaking that the original mark sheet shall be supplied to the petitioner wifhin a period of two weeks from the date of receipt of a copy of the ( impugned order. In view of the said undertaking, leamed counsel for respondent no.l/petitioner submitted that nothing survives now and the writ petition was disposed of. Thereafter, when the respondent's case was looked into and it was found that the issuance of second mark sheet was not possible in view of Regulations No.212 and 213 ofthe Board of Secondary Education, a review petition was filed but the same was also dismissed by the learned Single Judge vide order dated 19.1.2009. (3) Shri Pankaj Agrawal, learned counsel for the appellants argued that since the facts were suppressed by respondent no.l, therefore, he gave such an undertaking. He submitted that respondent no.l on 14.8.2008 gave a notice (Annexure B) to fhe appellant for getting her mark sheet and the said notice was replied by the appeUaht on 30.9.2008 (Annexure C) and on 13.2.2009 alsoa letter was issued by the Board that since efc W.A.No.41 of 2009 respondent no.l did not secure 10% more marks than whatshe secured in 2006 Examination, therefore, as per Regulations No.212 and 213 of the Board of Secondary Education, she was not entitled to get the mark sheet of the subsequent examination 2007, in which,. she has appeared for improvement of percentage of marks. He submitted that since these facts were not there in the writ petition and were not in his knowledge, bonEifidely such undertaking was given and the directions contained in the impugned order were issued. He further subtnitted that when the respondent's case was looked into and it was found that the c issuance of second mark sheet was not possible, a review petition was filed but the same was also dismissed by the leamed Single Judge vide order dated 19.1.2009. (4) It is not disputed that respondent no. 1 could not secure 10% more marks than what she secured in the previous examination. Regulations 212 85 213 reads as under: 212. Candidates who have passed Higher Secondary School Certificate Examination/ Intermediate Examination from the Board, may be permitted to re-appear at the next examination for miproving their division as a regular/ private candidate. This permission may be given during two . successive years after passing the Examination. Ifthe candidate improves his divisipn in this attempt, his previous certificates shall be issued. But in case he does not^improve his division, his examination of this attemptshall be cancelled. ^S!N^^%^^:li^^^^^^^ ^ W.A.No. 41 of2009 •-^la. 213. "R.W.(s)" category remain pending for indeEnite period which is neither correct nor proper service. Therefore, such examinations and their results shall be cancelled if conipliance of the remaining objection(s) is not received by the Board within 3 months from the date of issye of registered notice to the examinee without giving any further notice. "It is further provided that the candidates who pass the Board's examination the First Division may also reappear in the examination during two successive years for improvement of percentage of marks. If a candidate secures more than 10% mEU-ks of the total marks obtained by him/her m his/her previous examination, his/her previous inark sheet shall be deposited and a fresh mark sheet shall be issued. In case the candidate fails to obtain increase in the marks, his/her previous result will remain the same and the examination of this attempt shall be ca-neelled. The mark sheet of the cancelled examination shall not be issued to the candidate." (5) In view of the above, particularly in view of the proviso to Regulation 213, since respondent no.l did not secure more than 10% marks of the total marks obtained by her in her previous examination, new result and the mark sheet cannot be supplied to her and the new examinatiori has to be cancelled. In view of the above, since respondent no.l/petitioner was not entitled to receive the mark sheet of fhe cEincelled examination, but she got a direction at the threshpld by not disclosing all these facts and on giving an undertakmg, in good faith, by counsel for the appellants -<u W.A.No.41of2009 which was quite co-operative, the directions issued by the learned single Judge are required to be set aside. (6) Accordingly, the appeal is allowed and the impugned order as also the order passed in review petition by the leamed single Judge are set aside. The writ petition filed by respondent no.l/petidoner stands dismissed. No order as to costs. _^_-— s.-.sss-'"^ Sd/- . Chiefjustice Sd/- SUNIL KUMAR SINHA Judge /Ras>l