Controller of Examination v. Arun Kumar) and in C.W.J.C NO
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.4362 OF 2013 =================================================== AJAY KUMAR S/O PURAN RAY R/O VILLGE- DAYALPUR, P.S.- RAJA PAKAR, DISTRICT- VAISHALI (BIHAR). .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVERNMENT OF BIHAR, PATNA. 2.THE PRINCIPAL SECRETARY THE DEPARTMENT OF SCIENCE AND TECHNOLOGY, GOVERNMENT OF BIHAR, PATNA. 3.THE EXAMINATION CONTROLLER BIHAR COMBINED ENTRANCE EXAMINATION BOARD, I.A.S. ASSOCIATION BUILDING, NEAR PATNA AIR PORT, PATNA-14. 4.THE PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE, GOPALGANJ. .... .... RESPONDENT/S =================================================== Appearance : For the Petitioner/s:Mr.Ghulam Rabbani, Advocate. For the Respondent/s:Mr.R.K Singh GP-2. =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2/ 15-03-2013 Heard counsel for the parties in respect of the following relief:- No. "For Patna, directing the respondents quashing the order dated 13.04.2012 contained in Memo No. 781/2012 passed by the Respondent 3(Examination Controller of Bihar Combined Entrance Competitive Examination Board, and whereunder he has cancelled the provisional admission of the petitioner in Civil Course of DCECE-2009 the respondent no. 4(the principal, Polytechnic, Bihar Gopalganj) the admission of the petitioner and to take legal action against the petitioner. Government directed whereby cancel and to For the directing Respondents the to petitioner to continue his study and to complete the Civil Course allow
Legal Reasoning
Patna High Court CWJC No.4362 of 2013 (2) dt.15-03-2013 2 DCECE-2009 of Government Gopalganj. from Bihar Polytechnic, For directing the Respondents to stay the operation of 13.04.2012 dated contained in Order No. 781/2012 passed by the Respondent no. 3."
Decision
order Learned counsel for the petitioner has submitted that the allegation of impersonation against the petitioner in the admission test and the cancellation of his admission in terms of the impugned order based on the report of Forensic Science Laboratory (FSL) is wholly unsustainable either on fact or in law. In this regard, he has highlighted that the petitioner has already completed four semesters and is now reading in the fifth semester and at this stage he should not be subjected to cancellation of his admission which would virtually wind-up his entire career. Learned counsel for the petitioner on the other hand has submitted that the issue in this case is squarely covered by two Division Bench Judgments of this Court passed in L.P.A No. 576 of 2011 disposed of on 21.01.2013 (Controller of Examination Vs Arun Kumar) and in C.W.J.C NO. 9747 of 2011 disposed of on 11.01.2013 (Pankaj Kumar Roy Patna High Court CWJC No.4362 of 2013 (2) dt.15-03-2013 3 vs The State of Bihar). There is no dispute that the admission of the petitioner was made on provisional basis, inasmuch as, after it was detected that the petitioner and in fact few other persons like him had succeeded in the admission test by way of impersonation in course of admission test they were allowed only provisional admission by giving a specific undertaking that in the event their OMRsheets are found to be in the handwriting of someone else (not of the petitioner), their provisional admission being given would be subjected to cancellation. In fact the petitioner and all other persons had given a similar undertaking which for the Sake of clarity is quoted hereinbelow:- "The candidate has requested to release his blocked admit order submitting an affidavit stating there in on oath (i) that his sample handwriting obtained at the time of his counseling and handwriting on the OMR sheet of his Roll No has been sent to FSL for verification (ii) that his admission shall be provisional and fully covered by FSL report, (iii) that if the report of the FSL goes against him, his provisional admission and shall automatically be cancelled and necessary legal action shall be initiated against him. On candidature Patna High Court CWJC No.4362 of 2013 (2) dt.15-03-2013 4 is being the basis of above, the admit order released PROVISIONALLY subject to the final report by the FSL. If the identity of the candidate is not established on the basis of FSL report, his admission will be treated as cancelled and suitable legal action shall be initiated against him." In view of the above, the petitioner cannot take the plea of his continuation in the course and his completion of four semesters to be the valid ground for not canceling the admission specially when he had himself agreed for comparison of his sample handwriting obtained at his counselling with the handwriting in the OMR sheet of the FSL. In fact when he had also himself given undertaking that his admission will remain provisional and if the report of the FSL goes against him his candidature shall automatically be cancelled, he cannot now wriggle out of his own undertaking given on an affidavit. As a matter of fact, at the time of his counseling his sample handwriting was obtained as is apparent from Annexure-4 and Annexure-5 and the same was sent along his OMR sheet to the FSL, which is contained in Patna High Court CWJC No.4362 of 2013 (2) dt.15-03-2013 5 Annexure-3 because the two persons holding the counseling had found the handwriting of the petitioner to be doubtful. The FSL thereafter had given the following opinion:- in the with specimens "(1) Disputed writings and Deonagri signatures Script,enclosed red lines, stamped and marked-’x’ and ’x1’ are not in the handwriting of the person who of wrote writings and signatures in Deonagri similarly Script enclosed stamped and marked- ’A’ to ’A2’. (2) Disputed English, signatures enclosed lines, stamped and marked-’y’ and the ’y1’ handwriting of the person who wrote of English signatures similarly enclosed, stamped and marked-’B’ to ’B2’.(Mantu Kumar). specimens in with not the are red in in In view of the above, the petitioner was given a show cause notice and the petitioner has also filed his reply and his main defence was that at that time of counseling when he was asked to write the passage of the OMR-Sheet in his own handwriting he was having injury in his right hand and as such his handwriting and signature was taken under duress. The competent authority, however, has considered his show cause reply while passing the Patna High Court CWJC No.4362 of 2013 (2) dt.15-03-2013 6 impugned order which reads as follows:- "Govt. of Bihar BIHAR COMBINED ENTRANCE COMPETITIVE EXAMINATION BOARD IAS Association Building, Near Patna Airport, Patna-14 Tel. : 0612 - 2225387 Fax : 0612 - 2225387 vkns’k la[;k%& 781@2012 vkns’k fnukad 13@04@2012 Jh vt; dqekj] firk&Jh iqju jk;]] xzke $ iksLV&n;kyiqj] Fkkuk&jktkikdj] ftyk&oS’kkyh …fcgkj‰] fMIyksek lfVZfQdsV izos’k izfr;ksfxrk ijh{kk …Mh lh-bZ-lh-bZ-‰&2009] PE jkSy ua-&90104871] es/kkdze Gen-2031, dks fnukad 09- 12-2009 dh dkWmUlsfyax esa cqyk;k x;k FkkA es/kk&lg&fodYi ds vk/kkj ij lhV vkoaVu gsrq mDr dkWmUlsfyax esa leku :i ls lHkh vH;FkhZ dh igpku dh tkap dh fu/kkZfjr izfdz;k ds vuqwlkj vH;FkhZ Jh vt; dqekj ls Hkh muds jkSy uEcj okys mRrj i=d esa ijh{kk ds nkSjku fy[ks x;s x|ka’k (Text) dks muls fy[kokdj fy[kkoV dk uewuk dkmUlsfyax ny }kjk izkIr fd;k x;kA fy[kkoV ds ml izkIr uewuksa esa fy[kh xbZ fy[kkoV ls feyku ,oa tkap ds ckn dkWmUlsfyax ny us mDr nksuksa nksuksa fy[kkoV ds ijLij ugha feyus ds dkj.k ’Doubtful’ dh viuh fVIi.kh nhA rr~’pkr ojh; izk/;kidksa ds ,d vU; ny us iqu% mlh fof/k ls vH;FkhZ Jh vt; dqekj ds jkSy uEcj okys mRrj i=d esa ijh{kk ds nkSjku fy[kh xbZ fy[kkoV ls feyku ,oa tkap fd;k rkfd ;g Kkr gks lds fd ijh{kk ds le; muds jkSy uEcj ds mRrj i=d esa fy[kus okyk vH;FkhZ@ijh{kkFkhZ ogh gS tks dkWmUlsfyax esa ukekadu gsrq mifLFkr gqvk gSA izk/;kid ds ojh; ny us mi;qZDr tkap ds ckn viuh fVIi.kh esa ;g O;Dr fd;k fd "The handwriting of the candidate written before us does not match fully. The case may be referred to FSL for further verification. 2- mDr ds vkyksd esa fnukad 09-12-2009 dh dkmUlafyax easa vH;FkhZ Jh vt; dqekj ls fy;s x;s uewuksa dh tkap muds jkSy uEcj 90104871] es/kkdze Gen-2031 okys mRrj i=d esa fy[kh xbZ fy[kkoV ls djus gsrq ewy uewuks ,oa ewy mRrj i=d dks vkj{kh iz;ksx’kkyk (FSL) vijk/k vuqla/kku foHkkx] fcgkj iVuk dks Hkst fn;k x;kA bl chp ukekadu esa foyEc dks ns[krs gq, ;g fu.kZ; fy;k x;k fd pwafd vkj{kh iz;ksx’kkyk (FSL) ls tkap izfrosnu …fjiksVZ‰ izkIr gksus eas foyEc gks ldrk gSa] blfy;s ,sls lHkh ekeyksa esa vkSicfU/d :i ls ukekadu gsrq vkSicfU/kd ukekadukns’k …vkoaVukns’k‰ bl ’krZ ds lkFk fuxZr dj fn;k tk;s fd budk ukekadu vkj{kh iz;ksx’kkyk ls mudh fy[kkoV ds tkap izfrosnu ds QykQy ls iwjh rjg vkPNkfnr gksxkA 3- rnqijkUr Jh vt; dqekj DCECE-2009, PE Roll no.-90104871, es/kkdze& Gen-2031 dks es/kk&lg&fodYi ds vk/kkj ij vkoafVr Civil dkslZ] jktdh; ikSfyVsdfud] xksikyxat esa ukekadukFkZ vkSicfU/kd vkoaVukns’k muds }kjk fn;s x;s ’kiFki= ds vkyksd esa l’krZ foeqDr fd;k x;kA vkoaVukns’k ds i‘"B Hkkx es Li"Vr;k fuEuor vafdr fd;k x;k%% "The Candidate has requested to release his blocked admit order submitting an affidavit stating there in on oath (i) that his sample handwriting obtained at the time of his counselling and handwriting on the OMR sheet of his Roll no. has been sent to FSL for verification (ii) that his admission shall be provisional and fully covered by FSL report, (iii) that if the report of the FSL goes against him, his provisional admission and candidature shall automatically be cancelled and necessary legal action shall be initiated against him. On the basis of above, the admit order is being release PROVISIONALLY subject to the final report by the FSL. If the identity of the candidate is not established on the basis of FSL report, his admission will be treated as cancelled and suitable legal action shall be initiated against him." 4- vkj{kh iz;ksx’kkyk (FSL) ls Jh eUVq dqekj dh fy[kkoV dh tkap izfronsu la[;k HW- /2010 tks i"kZn dk;kZy; esa izkIr gqvk ftlds dze 1 ,oa 2 esa ;g Li"V mYys[k gS fd "Disputed writings and Patna High Court CWJC No.4362 of 2013 (2) dt.15-03-2013 7 signatures in Deonagri Script, enclosed with red lines, stamped and marked ’X’ and ’X’, are not in the handwriting of the person who wrote the specimens of writing and signatures in Deonagri, similarly enclosed, stamped and marked ’A’ to ’A1’." (2) Disputed signatures in English, enclosed with red lines, stamped and marked ’Y’ is not in the handwriting of the person who wrote the specimens of signatures in English similarly enclosed, stamped and marked ’B’ to ’B’2 (Ajay Kumar) 5- mijksDr izfrosnu …fjiksVZ‰ ls ;g Lor% Li"V gksrk gS fd Jh vt; dqekj ds jkSy uEcj 90104871 ds mRrj i=d esa DCECE-2009 dh ijh{kk esa fy[kus okyk O;fDr og ugha gS tks mDr jkSy uEcj ds es/kkdze&Gen-2031 ij ukekadu gsrq vkoaVu ds fy, dkWmUlasfyax esa mifLFkr gqvk gSA 6- QyLo:i i"kZn dk;kZy; ds i=kad 63@2012 fnukad 11-01-2012 }kjk izkpk;Z] jktdh; ikWfyVsdfud] xksikyxat dks lEcfU/kr vfHkys[kksa dh Nk;kizfr layXu djrs gq;s ;g funs’k fn;k x;k fd Jh vt; dqekj] Roll no. 90104871, es/kkdze&Gen-2031 dks lHkh lEcfU/kr vfHkys[kksa dh Nk;kizfr miyC/k djkrs gq;s muls dfri; fcUnqvksa ij Li"Vhdj.k izkIr dj i"kZn dk;kZy; dks miyC/k djk;sA le; lhek ds ckn Hkh vH;FkhZ dk dksbZ Li"Vhdj.k izkIr izkIr ugha gksus ds dkj.k izkpk;Z dks bl gsrq i"kZn dk Lekji= la[;k 470@2012 fnukad 03-03-2012 Hkstk x;kA ftlds izR;qRrj esa izkpk;Z ds i=kad 97 fnukad 20-03-2012 ds lkFk layXu vH;FkhZ dk Li"Vhdj.k i"kZn dk;kZy; dks izkIr gqvkA vius Li"Vhdj.k esa mUgksaus tks eq[; ckrsa fy[kh gS os fuEuor~ gS- …(i) ijh{kk ,oa dkWmUlsfyax esa eSa Lo;a mifLFkr FkkA (ii) dkWmUlsfyax ds le; esjs nkfgus gkFk esa t[e Fkk] mlh gkyr esa gels x|ka’k fy[kok;k x;k rFkk gLrk{kj fy;k x;kA eSaus gLrk{kj esa Kumar dh txg Kr fy[k fn;k ftlij eq>s MkV iM+hA eSa igyh ckj lk{kkRdkj esa mifLFkr gqvk FkkA eSa Mj x;k rFkk esjk gkFk dkaius yxk] ftlls esjs fy[kkoV esa fHkUurk gksus yxhA eSaus dksbZ /kks[kkxM+h ugha fd;k gSA mWaxyh esa t[e ds dkj.k fy[kkoV esa FkksM+k cgqr vUrj gks x;kA 7- Jh vt; dqekj ;kno }kjk viuh vfHkj{kk esa fn;k x;k mDr Li"Vhdj.k Lohdkj ugha fd;k tk ldrk gS D;ksafd& (i) ijh{kk ds le; fy[kus rFkk dkWmUlsfyax ds le; fy[kus esa fy[kkoV dh Li"V fHkUurk dks vuns[kh ugha dh tk ldrh gS vkSj lEcfU/kr dnkpkj dk dkj.k gkFk dh maxyh esa t[e gks tkuk crkdj mlls cpus ds iz;kl dks fdlh :i esa Lohdkj ugha fd;k tk ldrk gSA vH;FkhZ dks vius gkFk esa t[e gksus dh lwpuk dkWmUlsafyax esas mifLFkr inkf/kdkfj;ksa dks nsuh pkfg;s Fkh] tks mUgksaus ugha fd;kA vc tcfd FSL fjiksVZ ls muds nks"kh dk lk{; izkIr gqvk gS rks muds bl dFku dk dksbZ vkSfpR; ugha gSA (ii) izkd‘frd U;k; ds mn~ns’; ls fy[kkoV dh tkap dh izfdz;k nks ckj vyx&vyx ny ls djus ds i’pkr iqu% FSL ds fy[kkoV fo’ks"kK us ;g fu"df"kZr fd;k gS fd ijh{kk ds le; jkSy uEcj&90104871 ds mRrj i=d esa fy[kus okyk O;fDr rFkk dkWmUlsafyax esas fy[kkoV dk uewuk nsus okyk O;fDr nksusa fHkUu gSA FSL ,d Lora= laxBu gSA blds fo’oluh;rk ij lansg ugha O;Dr fd;k tk ldrk gSa mDr vk/kkj ij ;g Li"V gS fd Jh vt; dqekj }kjk fn;k x;k Li"Vhdj.k iw.kZr;k Hkkzed ,oa rF;fofgu gS vkSj Lor% bl fu"d"kZ rd igqapk tk ldrk gS fd ijh{kk esa dnkpkj /kks[kk?kM+h rFkk bEijlksus’ku ds os nks"kh gSA 8- Jh vt; dqekj dk vkoaVukns’k …tSlk fd dafMdk 3 esa mfYyf[kr gS‰ iw.kZr% vkSicafU/kd ,oa l’krZ FkkA lkFk gh vkoaVukns’k muds }kjk fn;s x;s ’kiFki= ds vkyksd esa fuxZr fd;k x;k FkkA ftlesa mYys[k Fkk fd ^^esjk vkSicaf/kd ukekadu FSL }kjk esjh fy[kkoV dh tkap izfrosnu ls iwjh rjg vkPNkfnr gksxk vkSj fy[kkoV ds mDr tkap izfrosnu esa vxj fy[kkoV ugha feyus dk fu"d"kZ gksxk rks esjh Mh-lh-bZ-lh-bZ-&2009 dh mEehnokjh ,oa mDr laLFkku@ikB~;dze esa ukekadu jn~n djrs gq, esjs fo:n~/k vko’;d oSf/kd dkjZokbZ dh tk;sxhA** vkoaVukns’k esa fn;s x;s ’krZ ds vuq:i FSL esa fy[kkoV tkap esa muds }kjk fd;k x;k impersonation Li"V gksrk gSA vr% vkoaVukns’k esa fn;s x;s ’krZ ds vuq:i vc vkxs dkjZokbZ djuk iw.kZr% mfpr gSA ;g Hkh mYys[kuh; gS fd ijh{kk esa Impersonation xSj dkuwjh gksus ds lkFk xEHkhj uSfrd vijk/k Hkh gSaA ,slk dj mUgksaus ,d es/kkoh Nk= dk izos’k dk volj lekIr dj fn;k gSA vr% os mEehnokjksa jn~n gksus ds lkFk&lkFk xEHkhj ltk ds Hkh ik= gSA 9 of.kZr rF;ksa ds vkyksd esa vt; dqekj (DCECE-2009 PE Roll no.90104871, Merit-Gen-2031) jk;] xzke$iksLV&n;kyiqj] Fkkuk&jktkikdj] ftyk&oS’kkyh …fcgkj‰] dh DCECE-2009 dh Civil ikB~;dze] jktdh; ikWfyVsdfud] xksikyxat esa ukekadukFkZ fuxZr firk&Jh iqju Patna High Court CWJC No.4362 of 2013 (2) dt.15-03-2013 8 vkSicaf/kd vkoaVukns’k jn~n djrs gq, okil fy;k tkrk gSA izkpk;Z] jktdh; ikWfyVsdfud] xksikyxat Jh vt;q dqekj dk ukekadu jn~n djus ,oa muds fo:n~/k oSf/kd dkjZokbZ ds fufeRr vko’;d vxzsrj dkjZokbZ djsaxsA g0@& …ts0 vkj0 ds0 jko‰ ijh{kk fu;a=d Kkikad 781@2012 fnukad 13@04@2012" In view of the detailed consideration made by the competent authority and the conclusion arrived as with regard to impersonation cannot be said to be erroneous either on fact or in law. Impersonation in fact of the petitioner in the admission test is apparent on the face of record. This Court in fact has also compared the signature of the petitioner on the OMRsheet (Annexure-3) with his signature on the affidavit of this writ application and from a bare perusal of that it would be clear that there is world of difference which by itself would be an evidence of the fact that someone else had impersonated the petitioner in the admission test. It is this aspect of the matter which has been considered by the Division Bench in the case of Pankaj Kumar Roy (supra), wherein, it was held as follows:- Mr. Kumar Vikas has appeared for the respondent Board. He has contested the Petitions. Mr. Vikas Kumar has writ submitted that the Patna High Court CWJC No.4362 of 2013 (2) dt.15-03-2013 9 of with were complied verification given petitioners provisional admission subject to the handwriting. The handwriting having been prima facie found to be doubtful, was sent to the Laboratory for examination by an expert. On receipt of the report of the expert, the Board was constrained to take action against the erring student. He has submitted that the Board, having the principles of natural justice and having relied upon the expert’s opinion, the decision of the Board need not be interfered with in exercise of power of judicial review. In support of his submission Mr. Vikas Kumar has relied upon the order of this Court in the matter of Ritik Raj Vs. The State of Bihar & Ors. (L.P.A. No.1589 of 2010, arising from C.W.J.C. No. 1095 of 2010 decided on 1st October 2010). He has submitted that admission granted to the writ petitioners was provisional subject to the result of the enquiry proposed to each petitioner. No equity has been created in favour of the petitioners by such provisional admission. against made be infirmities In the case of Amresh Kumar (supra), this Court set aside the decision to cancel the admission of the writ petitioner to M.B.B.S. course on the ground that the State Government had acquiesced with the the admission granted to the said writ petitioner and that no forgery or fraud was alleged to have been committed by the said writ petitioner. In the present case, there is no question of acquiescence and the allegation is that of impersonation. The aforesaid judgment, therefore, will not provide succor to the petitioners. in Patna High Court CWJC No.4362 of 2013 (2) dt.15-03-2013 10 the None other of judgments relied upon on behalf of the petitioners involves the question of impersonation. The question of credibility or the probative value of the expert opinion report) (Laboratory would arise had the petitioners challenged the legality of such report. In absence of challenge to the legality Laboratory report, this Court is not called upon to examine the credibility of such report. the to of standard We may note that in none of the above writ Petitions, the petitioner has challenged the genuineness or the legality of the report of the Forensic Science Laboratory. In absence of challenge to such report, this Court exercising power of judicial review conferred by Article 226 of the Constitution will not ordinarily question the veracity of such report. We may further note that the Evidence Act or the principle of proof beyond doubt or the strict proof required in a criminal case will not apply to the cases before us. The nature of enquiry conducted by the Board is a summary enquiry and not a criminal trial. The principle of preponderance of probability will apply. If there is a prima facie evidence of impersonation supported by the opinion of the expert, if the principle of nature been adequately complied with, the Court of judicial review under Article 226 of the Constitution will not interfere with the order made by the Board in exercise of its power to regulate professional admission courses. exercising justice power has to In the above circumstances, the provisional the granted admission petitioners or the passage of to Patna High Court CWJC No.4362 of 2013 (2) dt.15-03-2013 11 time will not create equity in favour of the petitioners. Admission secured by fraud cannot be sustained by a Court of law. In the present case, the authority of the Board to cancel the admission has not been questioned. The opinion of the been questioned. The Court has no reason to doubt the opinion of the expert or to interfere with the decision of the Board. expert not has In the matter of Ritik Raj (supra) this Court (one of us, the Chief Justice was party to the decision) has taken a view, “once there was a doubt of that impersonation and that doubt was strengthened by the opinion of the handwriting expert, the respondents were justified in cancelling the admission of the appellant.” case was it a The same view was taken by a Bench of this Court (coram : Nagendra Rai, A.C.J. and Rekha Kumari, J.) in the matter of Md. Motiur Rahman vs. The State of Bihar & Ors., (L.P.A. No.69 of 2005 decided on 24th January 2005). Board In above view of the matters, we are of the opinion that the impugned decision of the the to admission of the petitioners to the concerned courses cannot be said to be unjustified. The challenge impugned the orders is rejected. cancel to The Petitions are dismissed. In view of the above there is no difficulty in holding that the cancellation of petitioner’s admission on account of impersonation is perfectly justified both on Patna High Court CWJC No.4362 of 2013 (2) dt.15-03-2013 12 fact and in law. No sympathy can be shown to a person like the petitioner who had obtained his admission by playing fraud. That being so, this application is wholly misconceived and is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J)