VANI UMESH DESHPANDE... v. MAHARASHTRA STATE BO...

ORAL JUDGMENT : (Per G.S. Patel, J.)

1. Rule. Mr. Gandhi waives service for the 2nd Respondent. By consent, made returnable forthwith and taken up for final disposal.

2. The only issue for determination in this Writ Petition under Article 226 of the Constitution of India is whether the penalties prescribed for examination hall malpractices are only the maximum that may be imposed, or whether in exceptional cases, having regard to manifest extenuating and mitigating circumstances, the Respondents have the discretion to award a lesser penalty.

3. The Petitioner, Vani, is a minor. The Petition is brought by her father, as her natural guardian and next friend. By all accounts, Vani has always been a meritorious student, consistently doing well in her exams, participating in many non-academic activities and winning several awards and certificates. In March 2013, Vani applied for permission to take the SSC examination later that month. She was given an examination hall admission card. The SSC history and civics examination was to be held on 19th March 2013. On that day, Vani arrived late at the examination hall, apparently due to traffic problems. By the time she arrived, answer sheets had already been distributed. She says the delay disoriented her and made her nervous. She asked for, and was given, her answer booklet/sheet. This contained an instruction to the students to write their examination seat numbers on the right hand of every page of the

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question paper. Vani misunderstood: she wrote her seat number on the right of every answer sheet. Vani says she did this innocently, without ulterior motives, and that she had no reason to do anything untoward as she has always scored well on all her examinations.

4. On the face of it, however, disclosing the seat number on the answer sheets is an examination hall misconduct and invites action. The 2nd Respondent summoned Vani to a hearing on 25th April 2013. Vani request a short postponement and then appeared before the committee a few days later, on 29th April 2013, submitting an explanation in writing, in which she did not deny what she had done, but set out the circumstances in which it happened. The enquiry committee found she had scored over 75% in that particular paper, and 37 out of 40 marks in history. The Enquiry Report dated 29th April 2013, is annexed to the Affidavit in Reply. It supports Vani's version of the events. The Enquiry Committee found no evidence that writing her seat number had resulted in her being identified by the paper examiner; that, as a matter of fact, Vani's answer sheets were properly assessed without any sort of influence. On a re- assessment by the examination moderator, Vani's marks were confirmed and the Enquiry Report confirms her marks.

5. The 2nd Respondent considered the Enquiry Report. On 7th June 2013, the Divisional Commissioner of the 2nd Respondent cancelled Vani's examination saying that under Rule 11 she was banned from appearing for the SSC examinations till after September/October 2013. Those are the terms of Rule 11 of the 2nd Respondent's "Examination Malpractice - Penalties Notice"

currently in force. The Petition challenges this notification of 7th

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June 2013, seeks its quashing and an order directing the 2nd Respondent to declare the Petitioner's result at the May 2013 SSC examination.

6. In its Affidavit in Reply, the 2nd Respondent contends that in such matters motive is irrelevant; once misconduct is found the penalty must follow, and sympathy, past performance and other explanatory factors are, therefore, irrelevant. In fairness, Mr. Gandhi, Learned Counsel for the 2nd Respondent, does not contest Vani's explanation — and does in fact express sympathy — but only suggests that all that the 2nd Respondent did was to follow the rules prescribed; and that, indeed, the 2nd Respondent cannot act otherwise; or, in other words, that the 2nd Respondent has no discretion in the matter.

7. Mr. Shinde, Learned Counsel for the Petitioners, is, in our view, correct in his submission that such a slavish adherence to rules by the 2nd Respondent committee is altogether too doctrinaire and pedantic, and that the penalties prescribed are only the maximum, or the outer limits, of what may be imposed. Discretion always vests in the 2nd Respondent to impose a lesser penalty. Unless otherwise stated, the power to punish must necessarily include the power to absolve.

8. One of the many questions before the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education v K.S. Gandhi & Ors.,¹was whether a lesser penalty can be

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imposed in matters of examination malpractice. The Supreme Court held, in paragraph 39, that:

"… No axiomatic rule can be laid that the rule-making authority intended that under no circumstances, the Examination Committee could award lesser penalty. It depends on the nature and gravity of the misconduct to be dealt with by the disciplinary authority. In a given case, depending on the nature and gravity of the misconduct, lesser punishment may be meted out. …"

9. This ratio applies squarely in the present case. The prescribed penalty for misconduct is only the maximum that may be imposed. The 2nd Respondent has the discretion to impose a lesser punishment. Where extenuating circumstances remain undisputed, as they do in this case, the 2nd Respondent is entitled to take these into account while exercising its discretion.

10. On 19th July 2013, when the matter was on board, our attention was drawn to a communication dated 18th March 2013 from the 2nd Respondent to the Petitioners' Advocates. We took a copy of this communication on file. It is marked "X" for identification. The communication states that after the hearings on the last date in court, the 2nd Respondent board consulted the 1st Respondent and a decision has been taken to permit Vani to take the entire SSC examination again in September/October 2013, i.e., the that the ban on Vani taking the SSC examination till after September/October 2013 has been withdrawn. While we appreciate the swiftness of the Respondents' action, we express no views on whether or not it is appropriate. Mr. Shinde suggests, for instance, that rather than require Vani to take all the papers of the SSC

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examination again, it would be more appropriate to ask that she do just the History/Civics paper again in September/October 2013 and declare the rest of her results from May 2013. Which of these courses of action to adopt is a matter entirely within the Respondents' discretion.

11. In our view, the following order would meet the ends of justice.

ORDER

The impugned order/Notification dated 7th June 2013 is quashed and set aside to the extent that it prohibits the Petitioner from appearing for the SSC examination till September/October 2013. The Respondents are directed to reconsider the case of the Petitioner, Vani Umesh Deshpande, and to take a suitable decision having regard to the foregoing discussion, the facts and circumstances of the case, the written explanation submitted by the Petitioner and the Enquiry Report. It will be open to the 2nd Respondent to exercise its fullest discretion in the matter, including, if it thinks fit, confirming its decision of 18th July 2013 that the Petitioner do repeat the entire SSC examination in September/October 2013; or revising that decision by declaring the Petitioner's result at the May 2013 SSC examination in full or in part or requiring the Petitioner to repeat only the examination in History/Civics. The 2nd Respondent will communicate its final decision to the

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Petitioners and her Advocates within two weeks from the date of this order.

12. Rule is made partly absolute in these terms. Parties to bear their own costs. Petition to be listed on 6th August 2013 under the caption "directions" for reporting compliance.

(G.S. Patel, J.) (A.S.Oka, J.)

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