1 S.B.Civil Writ Petition No.5204/2006 Amit Chahar. vs. Board of Secondary Education, Ajmer. Date : 19.7.2007 HON'BLE MR. PRAKASH TATIA, J. Mr.PP Choudhary, for the petitioner. Mr.BL Bhati, AGA, for the respondent. - - - - - Heard learned counsel for the parties finally. The petitioner appeared as regular student in Senior Secondary Examination for the session 2005-2006. The petitioner was allocated Roll No.1149948 by the Board of Secondary Education, Rajasthan, Ajmer. The petitioner appeared in the examination conducted by the Board and when he took examination of Maths Paper I on 13.3.2006 in the morning session of 7:30 AM to 10:30 AM at Government Girls Secondary School, Rajmahal, Jodhpur, he took one supplementary answer sheet. According to the petitioner, he handed over both the answer sheets to the Invigilator before leaving examination hall. According to the petitioner, the 2 petitioner was called at examination center by the Invigilator around 3:00 PM on the same day and at that time, the petitioner was told that his supplementary answer book is missing. The petitioner immediately informed that he handed over both the answer books to the Invigilator and he verified both the answer books. According to the petitioner, nothing happened thereafter but subsequently he came to know that a first information report was sent to the S.H.O., Sadar Kotwali, Jodhpur on 13.3.2006 itself. In the said communication sent by the Center Superintendent cum Principal, Government Girls Secondary School, Rajmahal, Jodhpur, it is mentioned that after period of examination, the Invigilator found that one of the supplementary answer book issued for roll no.1149948 was missing. Copy of this communication dated 13.3.2006 is placed on record as Annex.P/3. The petitioner was asked to explain his conduct by issuing a show cause notice by the Secondary Board of Education, Ajmer which is dated 19.6.2006 (Annex.P/4). According to the petitioner, in this notice, for the first time, it has been mentioned that the petitioner did not annexed the supplementary answer book with the main answer book. The petitioner gave reply to the said explanation (Annex.P/5) wherein the petitioner clearly stated that he handed over both the answer books to the Invigilator and the Invigilator verified the answer books and 3 permitted the students to leave the class room. He also stated that he had no knowledge of lodging of FIR. He prayed that he may be exonerated from absolutely wrong charge against him. After considering said representation of the petitioner, the Board held the petitioner guilty and cancelled the petitioner's examination of the relevant year 2005-2006 and further restrained the petitioner from appearing in the examination for subsequent two years namely, 2006-2007 and 2007-2008. Being aggrieved against the action of the respondents, the petitioner has filed this writ petition. The petitioner has placed on record the copy of the instructions issued as guidance to the Invigilators in relation to issuance of the supplementary answer book and taking it back from the students. It also prescribed the action which can be taken when any student illegally takes the answer book outside the examination hall. Learned counsel for the petitioner pointed out that as per clause 8 of the instructions issued by the Board itself which are required to be followed by the Invigilator, it is clear that it is the duty of the examiner to collect all answer sheets from the students and satisfy himself about collection of answer sheets. He is required to arrange all answer books as per the roll numbers and before that, the 4 Invigilator cannot even open the door of the examination hall nor can permit any student to go out. It is submitted that as per the communication dated 13.3.2006 given by the Principal to the SHO itself, it is clear that the Invigilator's own case was not that at the time the students including petitioner left the examination hall, petitioner forcibly or by deceitful means took any answer sheet from the examination hall. It is further submitted that in the communication dated 13.3.2006 as well as in the communication given by the concerned Invigilator to the Principal, there is no allegation that the petitioner was responsible and took answer book outside the examination hall. The Invigilator even admitted that at the time of counting the answer books, the students opened the door and started moving out and that was a normal routine process. In view of the above, according to learned counsel for the petitioner, it is clear that the Invigilator was negligent in discharging the duties and violated the guidelines issued by the Board and to save him action has been taken against the petitioner. In view of the above reasons, the very factual foundation of taking the answer book by the petitioner is missing and, therefore, no action could have been taken against the petitioner. It is further submitted that the impugned order was passed mechanically, without application of mind. 5 The respondent submitted reply to writ petition and stated that it was the duty of the petitioners to tag the supplementary answer book with main answer book but he did not tag it. The petitioner took supplementary answer book absolutely illegally and in violation to the instructions issued to the students. When this fact came to the knowledge of the Invigilator, he informed it to the Center Superintendent who gave letter to the concerned police station for lodging FIR. It is submitted that the petitioner was given full opportunity to explain his conduct before passing adverse order against the petitioner. In view of the above, according to the respondent, the decision for cancellation of examination of the petitioner for the year 2005-2006 was just and proper and in view of serious misconduct, the petitioner was debarred from appearing in the next two year's examination. The respondent also placed on record the letter given by the Invigilator to the Principal of the school where the examination was held as Annex.R/2. I considered the submissions of learned counsel for the parties and perused the record. The very allegation levelled by the Invigilator in 6 her communication dated 13.3.2006, that too belated, contains only the fact that he could not find out the supplementary answer book of the above mentioned roll number of the petitioner. There was no allegation that the petitioner took away the said answer book. The respondent could not produce any evidence on the basis of which they formed opinion that the petitioner took the said answer sheet. It appears that it was a case of missing of supplementary answer book inadvertently or negligently by the Invigilator himself, therefore, the action of the respondents holding the petitioner guilty is without basis and evidence. Apart from it, looking to the totality of the facts, when the allegation initially is that only supplementary answering book was found missing by Invigilator, then the Invigilator also had no doubt that the petitioner took the answer book with him. Therefore, cancellation of petitioner's examination and debarring the petitioner from appearing in examination for next two years cannot be justified. In view of the above, this writ petition is allowed, the respondent is directed to declare the result of the petitioner of the year 2005-2006 on the basis of the answer sheets available with the respondent irrespective of the fact of missing of 7 supplementary answer book of one subject forthwith and the order impugned debarring the petitioner from appearing in examinations upto 2008 dated 26.7.2006 is also set aside. (PRAKASH TATIA), J. S.Phophaliya