RETWAM PATHAK Vs. ASSAM HIGHER SECONDARY EDUCATION COUNCIL

JUDGEMENT

(1.) The writ petitioner, a young student, after admitting that he had adopted unfair means in the Higher Secondary (Science) Examination held in March, 2001 by the Assam Higher Secondary Education Council (hereinafter referred to as "the Council"), seeks to challenge the actions of the council in debarring him from sitting in the said examination for the subsequent year due to commence with effect from 21.2.2002. The cancellation of the examination in which the writ petitioner was found to resorting to unfair means being a fait accompli is naturally not under challenge in the present proceeding.

(2.) The brief facts of the case may be noticed as hereunder. The petitioner, Reetwam Pathak, appeared in the Higher Secondary Examination of the year 2001 in the Science stream conducted by the Council under Roll 159 No. D-468 in the J.B. College Centre at Jorhat. On 3.3.2001, the petitioner was caught red handed while copying in the Physics papers held on the said date. The petitioner was immediately expelled from the examination hall and was debarred from appearing in the other papers. Such actions were taken on the basis of a written confession of the guilt by the writ petitioner. Thereafter, a notice dated 27.8.2001 by the Controller of Examinations of the Council was issued and served on the petitioner informing him that the Council was contemplating to take further punitive action against him and, therefore, he was required to submit a written explanation showing cause as to why such punitive action should not be taken against him. At this stage, the instant writ proceeding was instituted before this Court praying for a writ of Mandamus directing the Council to allow the writ petitioner to appear in the Higher Secondary examination to be held in the year 2002. Interim orders permitting the registration of the writ petitioner as a casual candidate was also sought. On the basis of the averments made in the writ application to the effect that the question of punitive action as contemplated in the notice dated 27.8.2001 had not been finalised, this Court by order dated 9.11.2001 while issuing Notice of Motion directed the concerned authority of the council to permit the petitioner to get himself registered as a casual candidate. This Court, however, made it clear that such registration would be subject to further orders in the case. A contempt application registered as Contempt Case No. 532/2001 was filed before this Court on 19.12.2001 alleging disobedience of the interim order dated 9.11.2001. On 3.1.2002, Misc. Case No. 32/2002 was filed by the council seeking vacation of the interim order dated 9.11.2001. In the aforesaid Misc. Case filed by the Council, it was pointed out that the punitive action as contemplated by the notice dated 27.8.2001 had been completed and by order dated 10.10.2001, the Council had resolved to debar the writ petitioner from sitting in the examination for the year 2002 in addition to cancellation of his examination of the year 2001. This Court by order dated 17.1.2002 directed the writ petitioner to submit an appeal to the Council for grant of permission to take the Higher Secondary Examination for the year 2002. The Council was also directed by the said order to consider the case of the petitioner and pass appropriate orders in the matter. As it now appears from the various affidavits and additional affidavits filed by the parties this Court, pursuant to the order dated 17.1.2002 passed by this Court, the matter was re-considered by the Council and by order dated 7.2.2002, the Council reiterated its earlier decision in the matter. The legality and validity of the aforesaid actions and orders which have the effect of debarring the writ petitioner fr'rom sitting in the Higher Secondary Examination scheduled to commence from 2:1.2.2002 is the subject matter of consideration in the present proceeding.

(3.) Mr. K.N. Choudhury, learned senior counsel appearing for the writ petitioner has primarily based the challenge made in the instant proceeding on the validity of the Regulations framed by the Council in this regard. A copy of the said Regulations namely, the Regulations for conduct of Higher Secondary Examination, 1985 has been placed before this Court. The learned counsel for the petitioner submits that the said Regulations have been framed under Section 24(2) (d) and (c) of the Assam Higher Secondary Education Act, 1984 (hereinafter referred to as "the Act"). It is argued by the learned counsel that under Section 24(2) of the Act, the power to frame Regulations laying down disciplinary measures for malpractices in examination is covered in clause (h). The Regulations in force not having been framed in exercise of powers conferred by the aforesaid clause (h) of Section 24(2) off the Act, the impugned actions, admittedly initiated on the basis of power conferred by the said Regulations particularly Regulation 36B are wholly unauthorised. Learned counsel appearing for the writ petitioner has further argued that in the affidavit filed by the Council, it has also been stated that the penalty imposed on the petitioner is on the basis of the criteria laid down for inflicting punishment adopted by the Council by resolution dated 28.11.2000. The said resolution, according to the learned counsel for the petitioner, is an implication of Regulation 36B(iii). Under the provison to Section 24 of the Act, all regulations, alterations and revocation thereof have been made subject to the approval of the State Government and are required to be published in the Official Gazette. The criteria for punishment adopted by the Council could not have been applied in the instant case to penalise the petitioner inasmuch as the said criteria has not been published in the Official Gazette. It is further argued by learned counsel that as the statute has prescribed a particular mode for the framing of regulations imposing punishment for commission of malpractice in examination. Such mode must necessarily be followed which have not been done in the instant case. The learned senior counsel for the petitioner has additionally argued that in the criteria adopted by the Council, 5 different punishments have been adopted for being awarded to candidates who have been found to have been adopting unfair means in an examination. According to the learned counsel, the classification made in the aforesaid criteria has no reasonable nexus with the object sought to be achieved by such classification and, therefore, the aforesaid criteria adopted by the council is open to interference by this Court in exercise of power under Article 226 of the Constitution. In support of his contentions, Mr. Choudhury relies on a decision of the Apex Court in the case of Collector of Central Excise - Vs- New Tobacco Co. & Ors., reported in (1998) 8 SCC 250 as also in the case of Ramchandra Keshav Adke & Ors. -Vs- Govind Joti Chavare, reported in (1975) 1 SCC 559.