1 HIGH COURT OF MADHYA PRADESH : INDORE BENCH, INDORE (S. B.: Hon'ble Mr Justice S.C. Sharma) W.P No.8390/2010(s) Mrs. Bhagwanti Gangrade Vs. State of M.P. & Ors. W.P No.9166/2010(s) Smt. Seema Verma Vs. State of M.P. & Ors. W.P No.9167/2009 (s) Vishnu Prasad Arya Vs. State of M.P. & Ors. W.P No.8397/2010 (s) Jeevan Singh Solanki Vs. State of M.P. & Ors. Shri L.C. Patne learned counsel for the petitioners. Smt. Vinita Phaye, learned counsel for the respondents State. Shri S.H. Karanjawala, learned counsel for the respondent Bhoj (Open) University. O R D E R (16.9.2011) Regard being had to the similitude in the controversy involved in the matter, the above cases were heard analogously together and a common order is being passed. The facts of W.P. No.8390/2010(s) are 2 being narrated as under : 2. The petitioner before this Court a Shiksha Karmi Gr.III serving the State of Madhya Pradesh has filed the present petition for issuance of an appropriate writ, order or direction directing the respondent No.4 to hold an examination in respect of Diploma in Education, second year and to declare the result of the petitioner after conducting aforesaid examination. The petitioner has also prayed for issuance of an appropriate writ, order or direction directing the State Government to absorb the petitioner as an Assistant Teacher in the newly created cadre in the regular pay scale of Rs.3000 – 5000/- w.e.f. 1.4.2007. 3. The petitioner's contention is that she was sponsored under the Scheme known as Operation Quality to obtain a D.Ed. Degree and the petitioner did appear in the first year examination conducted by the Madhya Pradesh Bhoj (Open University). The petitioner has further stated that she has cleared the first year examination in the year 2006, however in the D.Ed. second year examination on account of using of unfair means in the paper of the subject of Information and Communication Technology, was cancelled and thereafter the respondents have not held any examination and the result of the petitioner has not been declared. The petitioner's contention is that the State Government has later on created a new teacher cadre and for absorption from the post of Shiksh Karmi in the new teaching cadre the qualification of D.Ed. is mandatory, therefore, the respondent No.4 be directed to declare the result of the petitioner and to absorb the 3 petitioner in the Adhyapak Samvarg. 4. A reply has been filed in the matter and the stand of the respondent No.4 is that the petitioner has cleared the first year examination and was required to participate in the next paper of Information and Communication Technology and the same was cancelled on account of using unfair means by the petitioner. The respondent No.4 has also submitted that the Operation Quality was a programme of 2 years diploma course for the year 2005-2007 and the Scheme was introduced by the State Government as one time measure specially for the teachers, who were serving under the State Government like Guruji, Contract Teachers Class-II and Class-III, Shiksha Karmi Gr.II and III and Assistant Teachers as well as Head Masters working in the Government Schools, who were not having any Diploma or Degree in Education. The respondents have also stated that the aforesaid course was only a one time measure under the distant mode of education and the petitioner has used unfair means in the examination and the same has not been disputed. The respondents have also stated that a case was registered against the petitioner and thereafter the Committee has awarded a punishment of cancellation of paper concerned, an order was issued on 15.2.2008. The respondents have also stated that the programme known as Operation Quality introduced by the State under the Serv Shiksha Abhiyan was one time programme and the same has also come to an end and it is not a regular D.Ed. Course. The respondents have further stated that the 4 Scheme came to an end, hence the question of permitting the petitioner to appear in the examination, at this stage, does not arise. The respondents have also stated that the petitioner has resorted the unfair means in the examination that too being a teacher deserves no leniency and the respondents have prayed for dismissal of writ petition. 5. Heard the learned counsel for the parties at length and perused the records. The matter is being disposed of with the consent of the parties at motion hearing stage itself. 6. In the present case, it is not in dispute that the petitioner, who is working as Shiksha Karmi Gr.III was sponsored under the programme known as Operation Quality introduced by the State Education Centre under the Serv Shiksha Abhiyan enabling the petitioner and identically placed teachers to obtain a diploma in education. The petitioner did participate in the first year examination, however in the second year examination she has been caught red handed for using unfair means. A case was registered against the petitioner and thereafter she was not permitted to appear in the second year examination. A special course which was started by the State Government in the year 2005 came to an end in the year 2007 and at present no such course is going on under the Serv Shiksha Abhiyan. The Division Bench of this Court while dealing with the similar controversy involved in the case of Divakar Pr. Pandey and Ors. Vs. State of M.P. and three Ors. (W.P. No.8981/2008) in paragraphs No. 8, 9, 10, 11 and 12 has held 5 as under :- “8. On perusal of the pleading, three questions emanate for consideration, namely, whether the 'operation quality' programme in education, 2005-07 is one time measure or is a scheme in continuum; that whether the petitioners were involved in using unfair means and the finding on that score recorded by the committee is justified; and that whether the order passed on 6.6.08 by the fourth respondent as per Annexure P-40 debarring the petitioners from appearing in the additional examination is sound and correct. 9. As far as the first aspect is concerned, it is submitted by Mr. Dixit that the respondent No.4, namely, M.P. Bhoj (open) Univeristy, Bhopal is engaged in imparting education of D.Ed. Course and, therefore, the education quality programme under the Sarv Shiksha Abhiyan cannot be regarded as one time measure. Per contra, submits Ms. Shrivastava that it is a Government scheme introduced for enhancing the quality of teachers working in various Government primary, middle schools or E.G.S. Schools who do not have diploma or degree i.e. G.D.Ed, B.Ed, B.T.C.L.T. Etc. and it was specifically for two years and the course was made available under the distant mode through the Bhoj (Open) University and if the scheme and the programme are scrutinised in proper perspective, there cannot be any scintilla of doubt that it is a one time measure. Learned counsel has referred us to Annexure R-4/1 which is a scheme itself. On a careful perusal of the said programme, it is manifest that it is a diploma in education course for the year 2005-07. In the introduction it has been mentioned that the said programme, is only for two years. It would commence from the year 2005 and end in the year 2007. Thus, there will be only one opportunity for the untrained teachers under the 'operation quality'. The said 'Diploma in Education' course is recognized by the National Council for Teacher Education, New Delhi vide its letter No. F.No.62-6/2003-NCTE/N&S/38227 dated 13.8.2004. The details of the programme have been mentioned in the said booklet. All the teachers are required to read the same carefully and obey the rules. On a bare reading of the said paragraph, it is 6 clear as crystal that the said benefit was made available s one time measure and it is not a programme in continuum. 10. As far as the next aspect is concerned, the question that arises for consideration is whether the petitioners were involved in unfair means. The respondent No.4 has brought on record the report of the committee contained in Annexure-R-4/3. As is evincible the petitioners were asked to show cause mentioning that in the paper of DE 205 Social Science- Content & Methodology a case of UFM has been initiated against them. It is worth noting that the committee considered the material brought before it and intimated the petitioner individually that he/she has been put under the 'A' category and his/her paper has been cancelled and the result would be declared. It is also worth noting that in the writ petition, the petitioners in the 'A' category have only stated in a bald manner that the cancellation of the papers as per Annexures P-21 to P-39 is illegal, arbitrary and malafide and the same ensued due to confusion. The main prayer in the relief clause is to issue a writ of certiorari for quashment of Annexure P-40 wherein they have been debarred from appearing in the additional examination. On a perusal of Annexure R-4/3, it is manifest that the committee has scrutinised the answer-scripts and opined that some candidates had indulged themselves in unfair practice and accordingly it put them in various categories. In the absence of any specific challenge to the decision rendered by the UFM committee cancelling the papers, there is no warrant to discard the same. Be it noted on record that in the return filed by the fourth respondent, it has been clearly asseverated that the committee has taken into consideration the explanation offered by the petitioners. The explanations have not been brought on record by the petitioners. The representation submitted by them relates to the order passed vide Annexure P-40. It is also apposite to note that the petitioners were communicated with the order of cancellation on 15.2.2008 and they did not approach the Court immediately and only challenged the same by filing the writ petition on 28.7.2008. We may hasten to clarify that we are not dwelling upon the doctrine of delay and laches but taking note of the same, it can be said that were 7 the petitioners keen on challenging the cancellation of the papers, they would have come to this Court in quite promptitude and also offered explanation as to how they are not involved in UFM. The averments in that regard, as we have stated hereinabove, is an apology for averments. In view of the aforesaid, we have no hesitation in holding that the decision of the UFM committee cannot be found fault with. 11. The next aspect to be adverted to is whether the order passed vide Annexure P-40 is sustainable in law. On a perusal of the said order dated 6.6.2008, it is perceptible that there is reference of the order dated 29.5.2008 passed by the Commissioner, State Education Centre. It is stated therein that the candidates who have obtained grade D or E in the second year of 2007 D.Ed. Course or the candidates who were absent in one or all subjects would be eligible to appear in the said examination as a last chance. No candidate under the operation quality who has been punished for unfair means, would be entitled to appear in the said examination. The submission of Mr. Dixit is that the results might have been cancelled in one paper but as the petitioners have passed one year course and have done well they should be permitted to appear in the additional examination. Per contra, Ms. Shrivastava submitted that a booklet was provided to the students categorically stating that in case the candidates would be found using unfair means of any type their apapers would be cancelled and departmental action shall be taken. She has invited our attention to Annexure R(4) 1 which stipulates that there would be strict prohibition for using unfair means in the examination hall. If any teacher- candidate is found using unfair means, his examination shall be cancelled and appropriate departmental enquiry shall be directed to be conducted against the said candidates. We have already held that the petitioners were indulged in UFM. There is a postulate in the booklet that the examination would be cancelled and appropriate action shall be taken against such candidates. Annexure P-40 shows that a decision has 8 been taken that the candidates under the operation quality who have been punished for unfair means are debarred from appearing in the said examination. Once the examination is cancelled, it would be anomalous situation to ask them to appear in the examination for upgrading their grades. That would be an anathema to the spirit of the scheme. Thus, the decision taken by the respondent No.4 as contained in Annexure P-40 is not incorrect or fallacious. In fact, it is in consonance with the scheme. 12. In view of the aforesaid analysis, the writ petition, being devoid of merit, stands dismissed. There shall be no order as to costs.” 7. The Division Bench of this Court in the case of identically placed persons, who have used unfair means has held that they were not entitled to appear in the examination again keeping in view of the scheme framed by the State Government known as Operation Quality. This Court is also of the considered opinion that the petitioner as she was involved in using unfair means in the second year examination that too being a teacher, specially in light of the fact that the scheme itself has came to an end is not entitled for any relief and no case is made out to direct the respondent to hold again an examination of second year and to declare the result of the petitioner. 8. The petitioners is all connected cases have also prayed for absorption in the Adhyapak Samvarg and the petitioners admittedly do not hold a qualification required for absorption, i.e. D.Ed. qualification and, therefore, this Court cannot issue such a writ, direction or order directing the State Government to absorb the petitioners in Adhyapak Samvarg. Resultantly, all of the writ petitions are dismissed. 9 However it is made clear that in case the petitioners fulfill the qualification under the Rules, their case shall be considered for absorption in accordance with law. 17. The other identical petitions are also dismissed. 18. No order as to costs. ( S.C. SHARMA ) JUDGE skm