JUDGMENT
P.K. Mohanty, J.
1. The petitioners who had appeared at the Annual Higher Secondary Examination, 2001 call in question the decision of the opposite party No. 1, Council of Higher Secondary Education, Orissa cancelling the examination in English Paper-II and awarding ’00’ marks in the said paper.
2. The petitioners’ case in brief is that having passed the High School Certificate Examination conducted by the Board of Secondary Education, Orissa and securing good percentage of marks, they had been admitted into Jagannath Mahavidyalaya, Ashok Nagar, Batto in the district of Keonjhar. They appeared at the Annual Higher Secondary Examination, 2001 duly permitted by the Council. The examination centre was earlier scratched and as such the College authority decided not to conduct the examination taking the Principal of the College as the Centre Superintendent. The Sub-Collector, Anandapur was requested by the opposite party Nos. 1 and 2 to conduct the examination through their administrative staff so as to have a fair and impartial examination since the college teachers were on strike. The examination was conducted with the help of the Block staff. The petitioners claim that the examination was conducted as per the norms fixed by the Council without any disturbance and hindrance from any quarter. When the result of +2 (Science) examination was published on 8.6.2001, they found that their result has been withheld vide Annexure-1. The petitioners approached the opposite party No. 5 to know the reason of withholding of the result. However the petitioners came to know that the result of the petitioners’ institution was cancelled and they were awarded ’00’ marks in English Paper-II, as there was report of mass malpractice to have been adopted in the Centre. The petitioners claim that English Paper-11 examination was held on 13.3.2001 and to the best of the information, there was no malpractice adopted by anyone of the examinees nor mass mal practice. However it is alleged that on inquiry by the guardians of the petitioners, they come to know that Sri Sarat Chandra Mishra, opposite party No. 6 had approached the Governing 3ody of the College where his nephew Sri Rabinarayan Mishra was continuing as a Lecturer in Botany and whose services were terminated owing to disciplinary proceeding for his reinstatement, but since the Governing Body did not agree to the suggestion, in order to harass the management as well as the students a false report had been given by him. It is further claimed that the petitioners have secured very good marks in other papers and would have succeeded had this paper not been cancelled. The petitioners, therefore, pray for quashing the decision of the Council in cancelling their result.
3. In the counter affidavit filed by opposite parties 1 and 2, they have taken the stand that the petitioners had appeared at the Annual +2 Examination, 2001 from Shree Jagannath Mahavidyalaya, Ashok Nagar, Batto centre as ex-regular students. The results of the said College for the year 1995 (Annual), 1995 (Supplementary), 1998 (Annual) and 1999 (Annual) were cancelled on the basis of reports that the examinations were conducted in violation of Examination Rules and as such the College was under close scrutiny and supervision of the Council so far as the conduct of examination was concerned. The Examination Committee took a decision to withhold the result and decided that the result be examined by the Conducting Board thoroughly. The Conducting Board on thorough examination found identical answers in respect of different questions. Basing on the report submitted by the Conducting Board, the Examination Committee approved the suggestions of the experts and cancelled the results in English Paper-II (Science). It is stated that the examination was not conducted in accordance with the Conduct of Examination Rules in the centre and accordingly the Examination Committee of the Council decided to cancel the said sitting and awarded ’00’ marks in the said paper. Accordingly, in order to maintain the standards and purity of examination, the Examination Committee of the Council had taken the decision to cancel the said examination.
4. A rejoinder affidavit has been filed by the petitioners disputing each of the facts mentioned in the counter affidavit. It is specifically pleaded that since no specific question of malpractice has been pointed out nor has it been stated as to in which questions and in respect of which of the candidates, the Examination Committee found similarity so as to take the view that the examination was not conducted in terms of rules and there was adoption of mass malpractice, the examination in English Paper-II could not have been cancelled by the Council.
A further affidavit has been filed by the opposite parties 1 and 2 stating therein that out of the 20 petitioners except petitioners 3, 6, 18 and 19 all others have appeared in the supplementary Examination held in the year 2002. The chart showing the names and Roll numbers of the petitioners who have appeared at the examination has been attached to the further affidavit.
5. By order dated 28.9.2001 in Misc. Case No. 12615 of 2001 a direction was issued to the opposite parties that the answer scripts of English Paper-II of Annual C.H.S.E. Examination 2001 (Science) be preserved for production before this Court, if necessary. In course of hearing by order dated 3.12.2002 a direction was given to the learned Senior Counsel for the Council to obtain answer scripts of English Paper II of the College along with records. On the prayer of the learned Counsel for the opposite parties, the matter was adjourned from time to time. A further affidavit has been filed by the opposite party Nos. 1 and 2, Council of Higher Secondary Education, Orissa and its Controller of Examinations. In Paragraphs 5, 6 and 7, they have taken the stand that pursuant to the direction of this Court though, the answer scripts were kept in a separate bundle in the store meant for answer scripts, due to inadvertence while disposing of the answer scripts of 2001 Higher Secondary Examination, the said answer scripts were dumped and consequently disposed of. It is stated that in spite of best efforts, the deponent could not trace out answer scripts and due to inadvertence, the same has been disposed of and as such it was stated that in the aforesaid view it was not possible to produce the answer scripts before this Court. In view of the affidavit, the Court called upon the Chairman, Secretary and Controller of Examinations of the Council to show cause as to why they shall not be proceeded against for committing contempt of Court having flouted and/or disobeyed the order and failed to produce the answer scripts in respect of the petitioners. The Chairman, Controller and the Secretary of the Council have filed their respective replies to the show cause.
6. The Chairman in-charge, Council of Higher Secondary Education, Orissa, in his show cause, has stated that he joined as the in-charge Chairman on 12.12.2003. On getting information from his counsel for production of the answer scripts in English Paper-II of Annual Higher Secondary Examination, 2001 (Science), he made thorough search personally in presence of the Controller of Examinations, Secretary and the Vice-President of the Council, who are in charge of the same. But the answer scripts could not be traced out. It was suspected that by mistake and due to inadvertence, while dumping answer scripts of 2001 examination, the same had been dumped and ultimately disposed of. In the circumstances, the Chairman tendered unqualified apology for having failed to produce the answer papers. Similar is the show cause by the Controller of Examinations and the Secretary of the Council. It is really unfortunate and surprising that in spite of the specific order dated 28.9.2001 of this Court directing the Council to preserve the answer scripts of the petitioners in English Paper-II for production before the Court, if necessary, the answer scripts are not produced before this Court on the aforesaid ground. It appears that the order for preservation of the answer papers was passed on 28.9.2001 and the direction for production of the answer scripts was issued on 3.12.2002 and thereafter sufficient time was given. But ultimately, the answer scripts having not been produced, by order dated 3.2.2004, this Court issued notice to show cause as to why proceeding shall not be initiated against them. The non-production of the answer scripts and the plea that it might have been consigned to the record room and ultimately disposed of indicate the manner in which the Council and its officials are functioning specially when these officers deal with the career and future of lacs of students, who are undertaking the course and ultimately appearing at the Higher Secondary Examination.
7. On the merits of the writ petition, it is to be noted that the examination of this centre (college) was cancelled for the annual and supplementary 1995, annual 1998 and 1999 for violation of the examination rules. The college, according to the Council, was under observation because of the past records and ultimately, the Examination Committee withheld the results and got it examined by the Conducting Board thoroughly. The Conducting Board, on examination, found identical answers in respect of different questions. Basing on the report of the Conducting Board, the Examination Committee cancelled the result. This Court wanted to verify and ascertain as to whether such finding of the Conducting Board that there was identical answers in respect of each question which led the Examination Committee to form an opinion that the examinees have adopted mass malpractice was based on record. The answer scripts have been lost in spite of the specific order of this Court and as such it has not been possible to do so.
8. In the circumstances, the stand taken by the Council that the examination in English Paper-II was cancelled due to the infringement of the examination rules or because of mass malpractice since the answer scripts indicated identical answers, cannot be accepted. Identical answers may be found for very many reasons, but for the inference that it was the result of the mass malpractice, something more has to be proved; one of such modes may be that even the wrong answers were identical. There is no whisper in the counter affidavit that even the mistakes or wrong answers were identical in all answer scripts. We would have quashed the decision of the Examination Committee but most of the petitioners excepting four have appeared at the supplementary examination in the said paper and their results have been published. Nothing is brought on record about the four students, who did not choose to appear at the 2002 supplementary examination. The petitioners have been harassed and suffered due to the action of the opposite party-Council, which cannot be condoned when the materials which would have proved the veracity of the stand taken by the Council to be correct or otherwise have been destroyed may be due to whatever reason. In such circumstances, we feel it appropriate that the Council should compensate to some extent the petitioners, who have suffered due to negligence and laches of the officials in whose custody and control the answer papers in question were.
9. Accordingly, we direct the Council of Higher Secondary Education, Orissa to pay to each of the petitioners a sum of Rs. 5,0007-(Rupees Five Thousand) as cost.
10. However, we make it clear that the appropriate authority or the Government is free to and may consider, realization of such cost from the erring officer or officers, if on enquiry it comes to the conclusion that the cost is awarded due to negligence or laches of any or all such officers in charge of examination during the period in question, while the orders for preservation of answer papers and for production of such papers were passed.
The writ petition is disposed of in the aforesaid terms.
J.P. Mishra, J.
11. I agree.