1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION No.1690 OF 2010. 1. Sant Gadgebaba Arts, Commerce & Science Junior College, Mukundwadi (Rani Sawargaon), Tq. Gangakhed Dist. Parbhani, Through Its School Committee Member, Madhav S/o Sakharam Salgar, Age 35 years, Occu. Service, R/o Rani Sawargaon, Tq. Gangakhed Dist. Parbhani. 2. Tukaram S/o Sakharam Emde, Age 55 years, Occu. Agril., R/o Gunjegaon, Tq. Gangakhed District Parbhani. 3. Thoraji S/o Laxman Emde, Age 60 years, Occu. Agril., R/o Limbewadi, Tq. Gangakhed District : Parbhani .. PETITIONERS. VERSUS 1. The State of Maharashtra, Through its Secretary, School Education Department, Government of Maharashtra, Mantralaya, Mumbai. 2. The Maharashtra State Secondary & Higher Secondary Board, Aurangabad Divisional Board, Aurangaabad Through its Secretary ..RESPONDENTS. ... Shri C.K. Shinde, Advocate for Petitioners. Shri N.B. Khandare, Government Pleader, for respondent No.1. Mrs. Surekha Mahajan, Advocate for respondent No. 2. 2 CORAM : A.M. KHANWILKAR AND S.S. SHINDE, JJ. DATE : 9th March, 2010. PER COURT: 1. Heard Learned Counsel appearing for the respective parties. 2. Rule. Rule is made returnable forthwith. Counsel appearing for the respective respondents waive notice. With the consent of the parties, heard finally at the stage of admission. 3. This Writ Petition takes exception to the order dated 22-02-2010 issued by respondent No.2 thereby cancelling the examination center of H.S.C. Examinations scheduled to commence from 23rd February, 2010. The petition is filed through the School Committee member of the Petitioner No. 1. The petitioners No.2 and 3 are parents of the students appearing for H.S.C. Examination through the examination center of the petitioner No.1 College. The petitioner No.1 College is affiliated to the respondent No.2 Board. 3 4. It is the case of the petitioners that, respondent No.2 issued instructions to the petitioner No.1 for making necessary arrangement to conduct H.S.C. Examination to be commenced from 23rd February, 2010. In pursuance of the instructions, the petitioner No.1 arranged for the examination center. The petitioner No.1 provided necessary facilities at the examination center by making expenditure on electrical equipments, generator, fans etc. The College also forwarded examination forms of the students and on the basis thereof, the respondent No.2 issued Hall-Tickets (Admission Cards). The petitioner No.1 arranged for distribution of Hall-Tickets to the concerned students. The petitioner No.1 examination center is not only allotted to the students from the petitioner No. 1 College but also to the students from three other Colleges, namely, Naik Junior College, Swami Vivekanand Junior College, Chatori, Tq. Palam and Sant Dnyaneshwar Junior College at Village Khadi, Tq. Gangakhed Dist. Parbhani. It is the case of the petitioners that, all these 4 three junior colleges are within the distance of 10 Kms. from the petitioner No.1 College, and therefore, the examination center of the petitioner No.1 College being the nearest place, the students have opted for the petitioner No.1 College and selected the same as their examination center. 5. In pursuance of the orders issued by the respondent No.2 Board dated 13th February, 2010, the Petitioner No.1 College has appointed Director and Dy. Director at the examination center. It is further case of the petitioner that the Principal of petitioner No.1 College sought for police aid at the examination Center in order to prevent malpractices in the examination. The Police Station, Pimpaldari accordingly provided Police aid at the examination Center. The Petitioner No.1 distributed the Hall-Tickets issued by the respondent No.2, to the concerned students on 29th January, 2010 which bear the name of petitioner No.1 College and as such, all students appearing for the said examination have appeared for practical examinations at the said 5 examination Center during the period of 03-02-2010 to 20-02-2010. As such, the practical examination of the students of H.S.C. Arts & Science was completed by the time, the impugned order was passed by the respondent No.2 Board. It is the case of the petitioners that, the petitioner No.1 has already received question papers, answer-sheets and the necessary equipments for conducting H.S.C. Examination from the Board. The petitioner No.1 has also made sitting arrangement by putting seat numbers etc. The requisite staff is also engaged to conduct the examination. 6. It is further case of the petitioners that, all of a sudden the petitioner No.1 College received a telephonic message on 22nd February, 2010 at about 4.00 pm informing that the examination Center of the petitioner No.1 has been cancelled and the fax message to that effect is being sent. The Petitioner No.1 received the fax message at about 7.00 PM on 22-02-2010. 6 7. According to the petitioners, the petitioner No.1 College was directed on 22nd February, 2010 to hand over the question papers and the concerned stationery to the Principal of Rajmata Jijau Higher Secondary Ashram School at Rani-Sawargaon, Tq. Gangakhed, Dist. Parbhani and the said Ashram School was asked to make necessary arrangement to conduct the examination. Further, the impugned order passed by the respondent authority on 22nd February, 2010 is illegal inasmuch as, neither the petitioner No.1 College nor the students appearing at the said examination Center were given notice and information in advance. The decision to change the Center is taken at the eleventh hour, thereby virtually leaving the students unaware of the change of their examination Center. It is further submitted that, the examination Center is located at a rural place so also, the students appearing for H.S.C. Examination at the said examination Center are residents of nearby small villages, which do not have adequate communication facilities. Therefore, it was virtually difficult, rather impossible to inform the 7 students about change in their examination Center. It is submitted that more than 472 students were to appear for the said examination at the center of petitioner No.1 College. In this backdrop, the petition was filed and moved for urgent orders before this Court on 23rd February, 2010 at 10.30 am. According to the petitioners, the action of the respondent authorities is high handed and prejudicial to the student community, which has mentally disturbed them during the crucial period in which the students were concentrating for the ensuing examination. The respondent authorities have not taken into consideration even this crucial aspect and without giving any notice and information to the students for change of examination Center, passed the impugned decision, which is arbitrary and violative of the principles of natural justice. The impugned order is passed without taking into consideration the difficulties which will be faced at the examination Center by the concerned so also the students in particular. The respondent No.2 has arbitrarily and mechanically issued the impugned order and thereby caused 8 serious prejudice and inconvenience to the petitioners and the students. The learned counsel for the petitioners further submitted that, there are no complaints about the examination Center managed by the petitioner No.1 College. Therefore, learned Counsel for the petitioner would submit that this Writ Petition deserves to be allowed by setting aside the impugned order dated 22nd February, 2010. 8. The learned counsel appearing for the respondent No.2, on instructions of the Officer who is present in the Court and on the basis of averments made in the affidavit-in-reply, submitted that the respondent No.2 was obliged to implement the directions issued by the respondent No.1, and therefore, impugned communication / direction was issued communicating the Principal / In-charge of Examination Center, Rajmata Jijau Higher Secondary Ashram School, Ranisawargaon the decision of the respondents to change examination Center of the petitioner No.1 College Saint Gadgebaba Arts, Commerce & Science 9 Junior College, Martandwadi ( No.424) to Rajmata Jijau Higher Secondary Ashram School, Ranisawargaon, Tq. Gangakhed. The copy of the said communication was marked to the petitioner No.1 i.e. the Principal, Saint Gadgebaba Junior College, Martanwadi with direction to hand over question papers, answer sheets etc. to Center in- charge of Rajmata Jijau Higher Secondary Ashram School, Ranisawargaon. The Principal was also informed that the College should notify about the change in examination Center on a wooden board and affix the said board on the main gate of the College, so as to inform the students about the said change. It was further informed that the said school should appoint one teacher every day to communicate the students appearing for the examination about the change in Center. 9. It is further submitted that certain untoward incidences about the examination Center of petitioner No.1 were reported on 27-02-2009, in respect of which offences were also registered in the Pimpaldari Police Station. On 2nd January, 2010, the Collector, Parbhani submitted his 10 detailed report to the Secretary, the Maharashtra State Board of S.S.C. & H.S.C. Education, Pune and requested to close down the examination Center, and therefore, this fact was reported by the respondent No.2 to the respondent No.1 and in turn, the respondent No.1 has issued directions to close down the examination Center at petitioner No.1 College. It is further submitted that, petitioner’s Center is 1.5 KM away from Ranisawargaon and Rajmata Jijau Higher Secondary Ashram School, Ranisawargaon is within the said village, and therefore, there would be no inconvenience to the students. Therefore, learned counsel appearing for the respondent No.2 would submit that the respondent No.2 was obliged to comply with the directions issued by the respondent No.1 being under Section 34 read with Section 18(a) of the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965. Further, as soon as the said directions of respondent No.1 were received by the respondent No.2, the impugned order was communicated to the Petitioner No.1 College on 22nd February, 2010. 11 10. The learned Government Pleader, appearing for the respondent No.1 invited our attention to the affidavit in reply filed on behalf of respondent No.1. The Government Pleader submitted that the impugned order dated 22nd February, 2010 issued by the respondent No.2 to cancel the examination Center of H.S.C. Examination February-March, 2010 at Petitioner No.1 College was on its own. The Government had only made recommendation to the respondent No.1 to take suitable action. According to the Government Pleader, a proposal was received from the respondent No.2 for cancellation of Center of petitioner No.1 College and in turn, the Secretary, merely granted approval to the said proposal and it was not a direction, as stated by the respondent No.2. It is further submitted that, since there were some untoward incidences in 2009, and the criminal cases were registered at Gangakhed Police Station, therefore, a conscious decision was taken to close down the examination Center of petitioner No.1 College. It is further submitted that, henceforth the 12 Government will take adequate care to ensure that cancellation of any examination Center does not take place at the eleventh hour in future. 11. We have heard the learned counsel appearing for the respective parties at length and we are of the opinion that, the impugned communication / direction is the result of the directions issued by the respondent No.1 to respondent No.2. That becomes obvious from the communication of the respondent No.1 sent to respondent No.2 dated 20th February, 2010. It plainly calls upon the Secretary of the Board to take action as per the recommendation in the proposal submitted by the Board. Notably on perusal of the letter dated 12th February, 2010 written by the Director, Maharashtra State Secondary and Higher Secondary Board, Pune to the Principal Secretary, Education Department, it also reveals that the direction was sought by the Board from the Mantralaya to take appropriate action of change in Center. Besides, On perusal of para No.10 of the affidavit-in-reply filed by the Principal Secretary, School Education 13 Department it is clear that, the State Government has issued directions vide letter dated 20th February, 2010 to the Board to cancel the 18 examination Centers including the petitioner’s Center. Therefore, the argument advanced by the Government Pleader, under the instructions of the Principal Secretary, who is present in the Court, runs counter to the relevant documents and even the affidavit-in-reply filed by the Principal Secretary. 12. Thus, there is no manner of doubt that the Principal Secretary, School Education Department, Mantralaya, Mumbai issued directions to the Director, Maharashtra State Secondary and Higher Secondary Board, Pune for change in Center. The question is whether the State Government has power to issue such directions. For that, reliance was placed on the provisions of Section 34 of the Maharashtra Secondary & Higher Secondary Act, 1965 reads thus:- “ 34.(1) The State Government shall have the power, after considering the advice (if any) tendered by the State Board, to issue to that Board or a Divisional 14 Board such directions as it may consider necessary in regard to all or any of the matters specified in clause (a) of Section 18. The Board concerned shall comply with such directions.” The provisions of Section 18(a) of the said Act reads thus:- “18. Subject to the provisions of this Act, the powers and duties of the State Board shall be as follows, namely:- (a) to advice the State Government on matters of policy relating to (Secondary and higher Secondary) education in general, and on the following matters in particular - (i) ensuring a uniform pattern of (Secondary and higher Secondary) education. (ii) maintenance of uniform standard of education in secondary schools. (iii) co-ordination between national policies and State policies in (Secondary and higher secondary) education; (iv) co-ordination between (Secondary and higher Secondary) education university education and primary ...... education.” On plain language of the above provisions, it is obvious that the State Government, if at all, can issue directions to 15 the Board relating to the policy matters of subject specified in clause (a) of Section 18 of the Act. The direction issued for closing the examination Center was obviously not ascribable to policy matters specified in clause (a) of Section 18, reproduced earlier. In that view of the matter, the State Government had no authority to issue such “direction” to the Board with regard to closure of the examination Center. Significantly, the petitioner institution has been chosen as examination Center after due enquiry by the Board. That position is not disputed before us. The order of allotment of examination Center was passed as back as on 12th January, 2010. It is not in dispute that before the impugned decision was taken by the respondents to change the examination Center, no notice or opportunity of hearing was given to the petitioners although it was a drastic order of closing the examination Center - that too passed at the eleventh hour i.e. on the previous evening of the commencement of examination, as was communicated to the petitioners. Assuming that the such power / authority existed with the State 16 Government, the manner in which it has been exercised at the eleventh hour will have to be deprecated. For, it is an irresponsible decision taken at the eleventh hour, if not perverse. Inasmuch as, the intended action was not only against the institution but directly affecting the students community, who were supposed to appear for the ensuing Board Examination commencing immediately on the next day i.e. on 23rd February, 2010. There was hardly any time even to give adequate notice to the students about change of their examination centres. Displaying that change only on the notice board on the main gate of the Petitioner College, by no standards, can be said to be giving adequate notice to the students about change in their examination centre. More so, no care was taken to reassure that the new examination centre was fully geared up to handle the situation. 13. We were informed that the neighboring college, where examination Center was allotted at eleventh hour, was unable to make necessary arrangements to accommodate the students of the 17 petitioner No.1 College, due to paucity of time. We are shocked and appalled to note that the State Government has handled the issue in a mechanical manner and has failed to show any sensitivity to the problems likely to be faced by the students due to this change at the nick of time when they were to visit their examination centre to appear for the exams. In our considered opinion the action of the respondents authorities not only suffers from non application of mind but is palpably irresponsible one at least qua the 472 students who were to appear for the examination. The impugned action must have caused avoidable mental stress to the students who must have visited their examination centres at around 11.00 A.M. on the 23rd of February, 2010, to be told about the uncertainty which was, however, resolved only after this court intervened and granted stay at around 10.45 A.M. On the same day. This is plainly unacceptable. The authorities could not have remained oblivious of the fact that 472 students were supposed to appear for the examination, who were expected to arrive from different villages located within the 18 radius of 10 Kms, where there was no proper means of communication. 14. We hope and trust that the responsible officials, be it of the State Government or the Board, ought to observe restraint and act with circumspection, especially while dealing with issues concerning examination and not issue directions at the nick of time when the students were expected to concentrate on their examination. We hope and trust that, the respondent No.1 will abide by the statement made in para No.11 of the affidavit-in-reply filed before this Court that the decision of cancellation of any examination centers will not be taken at the eleventh hour in future. In case of some exigency necessitating change in the examination center, it ought to be done at least ten days before the practical examination starts, after giving opportunity to the affected parties. 15. Taking over all view of the matter, in the facts of the present case, we quash and set aside the impugned communication / direction 19 dated 22nd February, 2010 issued by the respondent No.2 thereby cancelling the examination Center of H.S.C. Examination February-March, 2010 at Petitioner No.1 College. Writ Petition is allowed and disposed of accordingly. The Rule is made absolute on the above terms. [ S.S. SHINDE, J ] [ A.M. KHANWILKAR, J ] SDM* 20 WRIT PETITION NO.1690 OF 2010. Date of decision : 9th March, 2010. For approval and signature. THE HONOURABLE SHRI JUSTICE A.M. KHANWILKAR. THE HONOURABLE SHRI JUSTICE S.S. SHINDE. 1. Whether Reporters of Local Papers } may be allowed to see the judgment? } Yes. 2. To be referred to the Reporter or not? } Yes 3. Whether Their Lordships wish to see the fair copy of the judgment? } No. 4. Whether this case involves a substantial } question of law as to the interpretation } of the Constitution of India, 1950 or } any Order made thereunder? } No. 5. Whether it is to be circulated to the } Civil Judges? } No. 6. Whether the case involves an important } question of law and whether a copy of } the judgment should be sent to Mumbai, } Nagpur and Panaji offices? } No. [S.D. MULAVEKAR] Personal Assistant to the Honourable Judge.