ROSHAN RAI Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) 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.

(2.) 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 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 Courts order dated 13.4.2009. On this, the petitioner has referred two judgments. The first judgment is of the Honble 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 Jains case, the Honble 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 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."

(3.) 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.