ORDER
1. Heard counsel. The petitioner took his examination for Higher Secondary Certificate at Government Girls Higher Secondary School, Ambah in the month of April, 1989. That was examination centre fixed by respondent No. 2, Board of Secondary Education, Madhya Pradesh, Bhopal. The petitioner’s Roll No. was 150455.
2. The event which brought petitioner to this Court is of 6th April, 1989 when petitioner was taking an examination in Mathematics. In the petition, he has accepted the position that examination hours were from 3.00 p.m. to 6.00 p.m. and at ten minutes past 5.00 p.m., the event took place. He has accepted that he has been charged for adopting unfair means at the centre and in regard to that Annexure R/1 has come on record.
3. We have examined the return of respondent No. 2 as also the additional return of that respondent and we have also carefully considered averments made in the rejoinder which petitioner submitted to the return.
4. We do not think if the petitioner can, at this stage, assail the finding and conclusion of the Board, Annexure R/6 of the return, as the Result Committee of the Board had met and taken a decision in regard to cases of several candidates who had adopted unfair means in
the Higher Secondary Certificate Examination in April, 1989. We have not found any merit in the contention of the petitioner that there was any mala fide action on the part of the Invigilator or of the Centre Superintendent or even of S.D.O., Ambah, Shri A. K. Shrivastava to rope in petitioner falsely and to brand him black-sheep for using unfair means. With Annexure R/1 are filed the copies of slips and those, it is submitted that, were recovered from the possession of the petitioner and in making the seizure, procedure prescribed was followed as is projected in the Report Annexure R/1.
5. The short question which has engaged our attention in this case, however, centres on the Interpretation of certain Instructions which the Board has issued for guidance of Centre Superintendents. The Hand-book is before us and at page 21 of the hand-book, appears the relevant Instruction which we extract :
(This matter being in Hindi we regret that we have to omit it here as we have no facilities for printing Hindi–Ed.)
It is submitted that petitioner’s examination in Mathematics paper has been illegally withheld and indeed his result in other papers has also been withheld illegally. It is submitted that even if it is held that petitioner had used unfair means in answering the Mathematics paper, the action of respondent Board in doing so is vitiated.
6. On facts, Shri Jain’s contest to petitioner’s entitlement on the aforequoted Instruction, in our view, has little substance. In grounds (b) and (e) in the petition itself, the case was made out by the petitioner for the complaint based on the Instruction, afore-quoted. In ground (b), it is stated that when the answer-book of the petitioner was seized on the ground that he had adopted unfair means, some signatures were obtained from the petitioner “by force with an excuse that the signatures are being taken for giving another answer-book.” In ground (e), there is a specific legal contention made, stating that, “after seizure of answer-book of the petitioner at 5.10 p.m., the petitioner was not provided
other answer-books as provided in penalty Clause 4(III) of the instructions issued by the respondent No. 2, for answering the questions within the remaining period of 50 minutes”. In the return and additional return, a strange and conflicting plea is taken to rebut the contention. It is stated that the petitioner never complained that undue force was exercised over him and that he “never demanded another answer-book”. But, in the second breath, it is stated further that, “there is no provision for supply of another answer-book”. Those are averments we read in the return and in the additional return. Endeavour is made by filling Annexure R/8 to make out the case that petitioner had not demanded another answer-book and the grievance was an afterthought.
7. It is very unfortunate that we have to record the plain and bitter truth that Board has done little to educate or apprise candidates of their rights mentioned in the handbook. In our view, the hand-book not only binds the Board, but it confers on examinees valuable rights on one hand and on the other hand, subjects them to the obligations which they are to perform in taking examination. We have been shown the usual format of the answer-books supplied by the Board to candidates and we are taken aback by Board’s ignorance of the duties which the Board requires the Invigilators, or the Centre Superintendents to perform under the hand-book. There is no guidance in that regard to be read on the cover-leaf of the answer-book though some other matters are printed and the candidates have to depend on the whim, caprice or mercy in any particular case, of the Invigilators or the Centre Superintendents as regards their rights or obligations. This is an occasion which we must seize and not allow to be lost to bring it to the attention of the Board that in the hand-book at page 19, at Clause XVII a duty is cast on persons concerned with conduct of examination to apprise all concerned of the different provisions of the handbook — “Adhiniyam Ke Nimna Anshon Se Sabhi Sambandhiton Ko Avagat Karaya Jaye”.
8. It is submitted by Shri Jain who is instructed by Shri A. H. Abbasi, Law Officer
of the Board that in all Notice Boards placed at all examination centres, a synopsis of the relevant “rules” is put up and by that, candidates are made aware of their rights and duties contained in the hand-book. Not only that has not come on record, we are rather of the view that that is not the proper way of apprising candidates of their important rights and duties contemplated in the hand-book. It would be appreciated if the Board takes steps to ensure that in the answer-books supplied to candidates their important rights and duties contained in the hand-hook are printed to draw their pointed attention to those provisions so as to bind them.
9. Coming to the interpretation of the aforequoled provision, we must observe that the norms in that regard cannot be disputed. The provision has to be evaluated objectively and must be interpreted reasonably to subserve its purpose effectively. It has to be construed also in its context and setting. We, therefore, find little merit in Shri Jain’s contention that when an answer-hook is seized for adopting unfair means the duties of the Invigilators or the Centre Superintendents are not loaded in any manner. The candidate has to suffer for the mischief and if he would like to suffer and deny himself the benefit of the provision of being provided with the second answer-book, none has to be blamed for that. In short, the contention is that until and unless there is a demand from the candidate for a second answer-book, nothing has to be done. It is also submitted that even if it is construed as duty of the authorities to furnish suo motu an answer-hook after having completed the seizure, that duty is not inexorable and absolute.
10. Reading the provision as a whole, we have taken the view that the object of the provision is to sec that a candidate is not denied the benefit of his intrinsic merit and is not penalised for fortuitous circumstances or misadventure. The object is to punish the sin and not the sinner and also to preempt complaints of questioned seizure or disputed acts on the part of Invigilators. As the candidate concerned is not heard subsequently, care is taken to cast a duty on the Invigilator
making the seizure, to do further acts beyond and after seizure. The tailored and timed sequence of events following the seizure injects life and content into the right of the candidate for being provided with a second answer-book. That the duty is mandatory is apparent also from the fact that the second answer-book has to be superscribed “Nakal Prakaran Dusri Uttar Patrika” to make the intention of the Board very clear that seizure is not the “Be all and End all” of the function of the Invigilator even when any candidate is caught red-handed using unfair means.
11. True, some times supplying a second answer-book may be a futile exercise, but, no reservation in that regard is contemplated and only the time of furnishing of the second answer-book is required to be noted. It cannot, therefore, be said that we would he construing the Instruction in question unreasonably by saddling on the Invigilator a mandatory duty of his supplying a second answer-book in the contingency contemplated, namely, of seizure of an answer-book for adoption of unfair means. It is clearly contemplated that the candidate has to solve or answer questions which he had not attempted and as such, his right is limited any by that, the scope is also limited of fruits which he will derive from the extended attempt. Invigilator’s duties and examinee’s right are duly balanced by allowing the examiner to function an arbiter of examinees’ fortune. Both answer-books being tagged up and sent up for evaluation, it would be within the competence of the examiner to disqualify any candidate making second attempt in the second answer-book of the questions already answered or at tempted earlier. There is ample safeguard, therefore, to be read in the Instruction aforesaid, to maintain the purity and credibility of the examination process.
12. In view of the interpretation of the aforequoted instruction and the violation thereof in the instant case, we have no difficulty in holding that petitioner has a case and his complaint deserves consideration. We are of the view that the result of the examination which the petitioner has taken has been arbitrarily withheld. We are informed by
Shri Jain and the Law Officer Shri Abbasi that all answer-books have been examined and evaluation has been made though tabulation has been deferred because of the decision of the Result Committee of the Board to disqualify the petitioner.
13. We accordingly allow the petition and make a two-fold direction in this matter. All answer-books which have been examined excluding the only seized answer-book of Mathematics, Paper I, shall be taken into consideration for tabulation. The result of the petitioner shall be declared on the basis of tabulation so made. Saying so, however, it is necessary to make one thing clear still. Should it be found that petitioner has not secured the necessary qualifying marks in Mathematics and he has passed in all other subjects, the Board will allow him, on his complying with all requirements, such as filling in form, payment of necessary fees, etc., to take a supplementary examination in Mathematics in the ensuing regular examination for 1990. This direction has to be made because the supplementary examinations have already been held during the pendency of the instant petition. There shall be no order as to costs.