IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 541 OF 2009 (MS) Roshan Rai ……..Petitioner. Versus State of Uttarakhand and another. …Respondents. Mr. Sharad Sharma, Senior Advocate, assisted by Ms. Indu Sharma, Advocate for the petitioner. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the State of Uttarakhand. Mr. L.K. Tewari, Advocate for respondent no. 2. 24th June, 2009 Hon’ble Sudhanshu Dhulia, J. This writ petition is being filed by the petitioner, who is a student of St. Josephs Academy, Dehradun, stating that while he was giving Class IX final examination, he was awarded Zero marks in all the subjects. When the writ petition was filed, the counsel for the petitioner was questioned on the maintainability of the writ petition on two grounds, firstly since the writ petition not being filed against “the State” or an “instrumentality” of the State or even against the “authority” or “person” as contemplated under Article 226 of the Constitution of India, the counsel for the petitioner at the relevant time had relied upon two decisions of the Supreme Court i.e. Mohini Jain (Miss) Vs. State of Karnataka and others reported in (1992) 3 SCC 666 and Poornima Banerjee Vs. Council for the Indian School Certificate Examinations, New Delhi and others reported in [(1995) 1 UPLBEC 265] and relying upon those 2 decisions, he argued that the writ petition is maintainable. The order dated 20.4.2009 is reproduced as under: “The case of the petitioner is that he has been awarded Zero marks in all subjects in Class IX examination although he appeared in all the papers in the Class IX examination. On inquiry, it was found that such treatment is being given to the petitioner since he was allegedly caught using unfair means in History Paper. However, the contention of the petitioner is that in such a case the Authorities could have awarded him Zero marks in History Paper alone, they should not and could not give Zero marks to the petitioner in all the papers. Prima facie there is a logic in this contention of the petitioner, however, the petitioner has first to satisfy this Court regarding the maintainability of the writ petition itself as reflected in the Court’s order dated 13.4.2009. On this, the petitioner has referred two judgments. The first judgment is of the Hon’ble Apex Court Mohini Jain (Miss) Vs. State of Karnataka and others reported in (1992) 3 SCC 666 and the other is of High Court of Judicature at Allahabad i.e. Poornima Banerjee Vs. Council for the Indian School Certificate Examinations, New Delhi and others reported in [(1995) 1 UPLBEC 265]. Whereas in Mohini Jain’s case, the Hon’ble Apex Court has equated right to Education as a part to right to life and liberty under Article 21 of the Constitution of India, and in the case of Allahabad High Court, the Court interfered in a matter regarding the ‘private institute’ and held that the writ petition is maintainable against “the Council for Indian School Certificate Examinations” as a writ 3 can be issued to any “person” or “authority” and even against a private person. Hence, notices are issued to respondent no. 2 to be returnable within three weeks. Learned counsel for the petitioner prays that he may be allowed to serve the respondent no. 2 by Dasti. Permission is granted. Petitioner shall taken steps within three days. Put up this matter after three weeks.” In the order dated 20.4.2009, the Court had not given any final opinion on this aspect and had merely issued notices. Therefore, merely because notices have been issued by this Court, it would not mean that the writ petition is held to be maintainable, as this issue could be raised at the time of admission again. The aspect regarding the maintainability of the writ petition therefore was left open. Now since the counter affidavit has also been filed and the pleadings are complete the issue must be decided finally, since the learned counsel for the respondent St. Josephs’ Academy, Sri L.K. Tewari has questioned the maintainability of the petition. It is an admitted case that the writ petition was filed against the St. Josephs’ Academy, Dehradun, which is neither a “State” nor an “instrumentality of the State” as contemplated under Article 12 of the Constitution of India, nor it is a “person” or “authority” as contemplated under Article 226 of the Constitution of India. The writ petition is not maintainable as the St. Josephs’ Academy is a private institute, which has no control certainly no “deep and pervasive control” by the State either administratively or financially. The School is not under 4 the grant in aid of the State Government nor does it take any other aid from the Government. Moreover, it is a minority Institute and being minority Institute, it has been established and is being administered by a minority i.e. the Christian community. This Institute has therefore further protection under Article 29 and 30 of the Constitution of India. As such, how the school administers and how it takes administrative decisions a greater independence and freedom is granted to such institutes unless the petitioner shows that such “administration” would actually amount to “maladministration”, which are the limits set by the Hon’ble Apex Court in All Saints High School Vs. Govt. of A.P. (1980) 2 SCC, 478. Mr. Sharad Sharma, Senior Advocate has not been able to show that what has actually happened amounts to a maladministration. Therefore, the writ petition has to be in fact dismissed on the ground of maintainability itself. All the same, the facts of the case also do not require any interference from this Court. Admittedly, these marks have been awarded as the petitioner was caught cheating in the History paper. The contention of the petitioner is that whereas he was caught cheating only in the History paper, awarding Zero marks to him in all the papers is not fair. Hence this writ petition. In its counter affidavit filed by the St. Josephs Academy, it has been pointed out that the order passed against the petitioner is in accordance with law and the rules presently applicable to the St. Josephs Academy, more particularly Rule 38 of the ISC (Council) Rules, where such a power is given to the Principal to award Zero marks, if such a student is caught cheating. The relevant rule 38 reads as follows: 5 “Student found guilty of using unfair means of being in possession of examination related material during exams will be granted a zero in all the subjects and the examination as a whole will be cancelled.” Counsel for the petitioner Mr. Sharad Sharma, Senior Advocate now states that although such a power rests with the Principal of the College, yet there has been a pick and choose in the matter inasmuch as other students who were caught cheating in the examination were awarded zero marks only in that paper, however, counsel for the St. Josephs’ Academy has sated that no parallel can be drawn between those students and present student inasmuch as whereas those students were caught cheating in a term examination, but the petitioner was caught cheating in the final examination and hence the punishment is more severe. The above facts have been mentioned only in order to show that on merits as well the case of the petitioner does not stand on its legs. Not only the punishment awarded to the petitioner is well within the jurisdiction of the Principal, it cannot be called severe punishment under the facts and circumstances of the case. A statement has been made at the bar by the learned counsel for the petitioner Mr. Sharad Sharma, Senior Advocate and learned counsel for the St. Joseph Academy Mr. L.K. Tewari that as of now the petitioner 6 has in fact taken admission in Class IX and is pursuing his studies in that Class. This fact also further requires that no interference be made on this matter. In view of the aforesaid discussion, writ petition being totally devoid of merit and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 24.6.2009 Rathour