Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7950 OF 2023
Onkar Niloba Gaikwad
S/o. Niloba Changadeo Gaikwad & Anr. ...Petitioners
Mr. Jainendra Sheth, Appointed Advocate for the Petitioners.
Ms. Mrunal Tawade i/by Little & Co., Advocate for the
Respondent/Board.
Ms. Priyanka Chavan, AGP for the Respondent/State.
Mr. Niloba C. Gaikwad, Present-in-person.
ASHWIN D. BHOBE, JJ.
JUDGMENT
1. Leave to delete Respondent No.2. Deletion to be carried out forthwith.
2. Despite service of Court notice on Respondent No.9, none has caused an appearance to assist the Court. This Petition is filed in 2023. Issue is as regards declaration of the result of the SUNNY THOTE 1 of 10 ANKUSHRAO THOTE Petitioner student for the Year 2015-2016, pertaining to the Higher Secondary Certificate (‘HSC’) Examination. In such circumstances, we do not find it appropriate to keep this Petition pending, waiting for Respondent No.9 to make up his mind and appear before the Court.
3. We have considered the strenuous submissions of the learned Advocates for the Petitioner and the State Board and the State. The issue addressed to us falls in a short compass.
4. The Petitioner appeared for the HSC Examination for the Academic Year 2013-2014 in February-March, 2014. He secured 45.54% marks. In order to make a future, he desired to avail of the remedy of reappearing for the examination under the Class Improvement Scheme (‘C.I.S.’), which is introduced vide the circular of the Maharashtra State Secondary and Higher Secondary Board, dated 4th June, 2008. Clause No.10 indicates that before the declaration of the result under the C.I.S., the student should be granted the option of choosing either the original result or the Improvement Result. However, the Petitioner failed in the Improvement Examination in 2015.
SUNNY THOTE 2 of 10
5. The controversy is that the college filled up the form for the Petitioner for the examination to be held in February-March, 2015, by erroneously mentioning in the form that the Petitioner has failed. This was apparently a mistake. The college Principal issued a letter dated 26th May, 2018 to the Divisional Secretary of the Board under his signature, admitting that he wrongly mentioned the status of the Petitioner as a repeater/failed instead of mentioning his status as a candidate seeking Improvement.
6. The Petitioner, therefore, again appeared for the examination in February-March, 2016 as a repeater having failed in Year-2015 examination. The Principal again committed a mistake by mentioning in the form that the Petitioner is appearing under the C.I.S. rather than mentioning that he is a repeater. In view of such mistake, the Principal again sent a letter to the Divisional Secretary of the Board dated 13th June 2022, stating therein that it was his mistake and he should have indicated that the Petitioner was appearing as a repeater since he failed in the Year-2015 examination.
7. Both the above referred letters of the Principal are on record and it is not the case of the Board that they have not received SUNNY THOTE 3 of 10 either of the said communications. The learned Advocate for the Board has strenuously opposed this Petition in the light of the affidavit in reply purportedly filed by Mr. Audumber Sampatrao Ukirde, the Divisional Secretary of the Maharashtra State Board of Secondary and Higher Secondary, Pune Division Board. The affidavit in reply is neither on record, nor does the computer indicate any evidence of the affidavit having been e-filed. However, the learned Advocate for the Petitioner has received the hard copy of the affidavit, the verification of which is missing. Nevertheless, the thrust of the Board’s submission is that though the Petitioner was eligible to appear for the C.I.S., he appeared as a repeater. When he failed in the said attempt, he took the last attempt (only two attempts are permissible), as a candidate seeking C.I.S., when he had actually failed in the Year-2015 examination.
8. We find that this case involves the element of comedy of errors.
9. Clause Nos.5, 10, 11 and 12 of the C.I.S. dated 4th June, 2008, read as under:- “(५) वि द्यार्थ्यां ाने उत्तीर्ण क े लेल् ा परीक्षेनंतरची लगेच लगतच् ा परीक्षेसाठीच ही संधी फक्त एकदा उपलब्ध राहील. उदा. माचमध् े SUNNY THOTE 4 of 10 उत्तीर्ण झालेला वि द्यार्थी- लगतच् ा ऑक्टोबरच् ा परीक्षेस ा ोजनेखाली प्रवि ष्ट होऊ शक े ल. (१०) ा वि द्यार्थ्यां ाचा विनकाल सदर परीक्षेच् ा इतर वि द्यार्थ्यां ाच् ा विनकालाबरोबर जाहीर क े ला जाईल. मात्र ा वि द्यार्थ्यां ाना गुर्णपवित्रका विनकालाच् ा विद शी विमळर्णार नाही. (11) विनकाल जाहीर झाल् ानंतर ा वि द्यार्थ्यां ाना ा ोजनेखाली प्रवि ष्ट झालेल् ा परीक्षेची गुर्णपवित्रका स् ीकारा ाचा वि कल्प (वि कल्प फॉमच् ा नमुन् ात) देण् ाचा अधिधकार असेल. वि द्यार्थ्यां ाला संपूर्ण न ीन किंक ा संपूर्ण पू -च् ा परीक्षेची गुर्णपवित्रका स् ीकारर्णे बंधनकारक राहील. काही वि ष ांचे गुर्ण जुन् ा परीक्षेचे काही वि ष ांचे गुर्ण न ीन परीक्षेचे अशी सरविमसळ अनुज्ञे राहर्णार नाही, हा वि कल्प वि द्यार्थ्यां ाने विनकाल जाहीर झाल् ानंतर संबंधिधत कविनष्ठ महावि द्याल ामाफत एक मविहन् ाच् ा आत मंडळाकडे सादर करा ा एक मविहन् ाच् ा आत वि द्यार्थ्यां ाने संबंधिधत क. महावि द्याल ा माफत वि कल्प न विदल् ास दुस- ा मविहन् ा पासून वि द्यार्थ्यां ाकडून रु. ४००/- दंड आकारण् ात ेईल दोन मविहन् ापेक्षा जास्त मुदत दे ू न े. विटप-प्राचा ानी सदर इ. परिरपत्रक नोटीस बोडा र ला ून स वि द्यार्थ्यां ाच् ा विनदशनास आर्णा े. माविहती अभा ी वि द्याध् र्थ्यां ाचे नुकसान झाल् ास त् ास क. महावि द्याल प्रमूख जबाबदार राहतील. ाची नोंद घ् ा ी. वि द्यार्थ्यां ाने वि कल्प न विदल् ास पू -ची गुर्णपवित्रका त् ांना स् ीकाराह आहे असे गृविहत धरून न ीन परीक्षेची संपादर्णूक रद्द ठरवि ली जाईल. (१२) वि द्यार्थ्यां ाने ा ोजनेखाली प्रवि ष्ठ झालेल् ा परीक्षेची गुर्णपवित्रका स् ीकारण् ाचा विनर्ण घेतल् ास त् ाला ापू - उत्तीर्ण झालेल् ा परीक्षेची मूळ गुर्णपवित्रका मंडळाकडे वि कल्पासोबत जमा करर्णे आ श् क राहील सदर गुर्णपवित्रका रद्द करण् ात ेईल. त् ानंतरच त् ाला सदर ोजनेखाली प्रवि ष्ट परीक्षेची गुर्णपवित्रका देण् ात ेईल.”
10. Though the affidavit in reply of the Board is not on record and there is no trace of filing of the affidavit in reply, the SUNNY THOTE 5 of 10 learned Advocate for the Petitioner has tendered a photostat hard copy of the said reply. Nowhere in the reply has the Board taken a stand that the Petitioner should have made the first C.I.S. attempt in October-2014 and the second attempt could have been made in February-March, 2015. So also, it is nowhere stated that after the Petitioner failed in the C.I.S., he was officially given the right to exercise an option of either accepting the 2014 result, when he scored 45.54% or the failed result of February-March, 2015. Had such option been given to him, he could have either taken the 2014 result and a quietus could have been given to the matter or he could have taken the failed result and reappeared for the entire examination, which was permissible in law, in February-March,
2016.
11. The rules indicate that the Petitioner could have taken his first CIS attempt in Oct-Nov 2014. Since the Principal of the college filled in the online examination forms for the students including the Petitioner, the mistake lies on the part of the Principal. Under fortuitous circumstances, the Petitioner appeared for the February-March, 2015 C.I.S. The Principal should have mentioned his status as passed in 2014, instead as failed.
SUNNY THOTE 6 of 10
12. In February-March, 2016 examination, the Petitioner reappeared for the examination and scored 381 out of 650 marks (approximately 58.61%). However, the Principal had again committed a mistake of mentioning in the online form that the Petitioner was appearing for improvement, instead of having appeared as a repeater. He put his name in the C.I.S. The Board apparently lost sight of the fact that the Petitioner’s application form could not have been accepted in 2016 from the C.I.S. category, since he had already failed in 2015 and similarly, his application form should not have been accepted in 2015, when the Principal uploaded the form online by wrongly mentioning his status as failed instead of C.I.S.
13. We are pained to notice that because of this controversy, the Petitioner could not pursue further studies and since 2016 until today, he is idle, because the Board is refusing to release his marks memo. Except that he continuously appears for the NEET- UG examination. However, he could not qualify for such examinations because the Board did not issue the February-March, 2016 result. With the 2014 result of 45.54%, the Physics, Chemistry and Biology aggregate of the Petitioner is less than 45% and, SUNNY THOTE 7 of 10 therefore, he is disqualified from appearing for the NEET-UG examination.
14. Rarely would such a case come before a Court. The Board is steadfast on its stand that a fraud was played by the college. The Principal has chosen not appear in the proceedings. However, his two letters on record are uncontroverted, wherein he has explained his mistake. The question is whether the Petitioner should suffer for the mistake committed by the college. The C.I.S. mandates that the Board is obliged to place before the Petitioner and similar students, the opportunity to opt, either for the earlier result or for the C.I.S. result. Admittedly, the Board has not given this option to the Petitioner. Since he failed in the purported C.I.S. attempt of 2015, he accepted it as his fate and again appeared for the 12th Standard examination in February-March, 2016, wherein he has scored 58.61%.
15. In such a situation, wherein a case of such a litigant hangs in balance in peculiar facts and circumstances, we are required to exercise our discretion, judiciously.
SUNNY THOTE 8 of 10
16. We see two very glaring aspects. Firstly, that the Board has committed a mistake in not placing the option before the Petitioner, to accept the 2014 result of 45.54% or the 2015 result – failed. We quite see that in such a situation, the Petitioner would have opted for the 2014 result. However, by conduct, he accepted the 2015 result of ‘failed’ and reappeared for the examination in February-March, 2016, wherein he scored 58.61%. This is the last result of the Petitioner. He has improved on his earlier result and scored 58.61%. A student is attempting to build a career. In such peculiar circumstances, we are expected to take a pragmatic view, rather than a pedantic approach as has been taken by the Board, which has committed the mistake of having not given the option to the Petitioner.
17. In view of the peculiar and unusual facts and circumstances in this case, this Writ Petition is partly allowed. We direct the Board to issue the marks memo of the Petitioner for the HSC February-March 2016 examination, wherein he has scored 381 out of 650 (58.61%). This marks memo be issued within a period of 15 days from today. Needless to state, if the Petitioner has any opportunity of appearing for any entrance exam for any professional SUNNY THOTE 9 of 10 course, the same shall be on the basis of this 2016 result. Simultaneously, we would expect the Board to issue the Higher Secondary Certificate to the Petitioner within a period of 30 days from today, on payment of appropriate fees. The fees to be paid within a period of 5 days.
18. High Court Legal Aid Services Committee, Mumbai, would pay fees to the learned Advocate for the Petitioner, as per the approved scales. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.) SUNNY THOTE 10 of 10