JUDGMENT M.C. Agarwal, J.
1. By this petition under Article 226 of the Constitution of India, the petitioner, who is a student, seeks a writ of mandamus directing the respondent No. 1 to declare the result of the High School Examination 1990 in which the petitioner appeared as a private candidate with Roil No. 1092342.
2. A counter affidavit has been filed on behalf of respondent No. 1. Respondent No. 2, Principal of the examination centre has not appeared and no counter affidavit has been filed.
3. I have heard Sri R. C. Singh, learned counsel for the petitioner, and Sri J. N. Verma, learned Standing Counsel for respondent No. 1.
4. The petitioner appeared in the High School Examination conducted by the Board of High School and Intermediate Education, U. P. as a private candidate with Roll No. 1092342 in the year 1992 from Janta Inter College, Khergarh, Agra. His result was withheld and has not been declared inspite of repeated representations. That is why, the petitioner filed this writ petition on the 12th of July, 1994 and by order dated 13th July, 1994 the Standing Counsel was required to file a counter affidavit. No counter affidavit was filed and hence by order dated 22-8-1995, this Court issued an interim mandamus directing the respondent No, 1 to declare the result of petitioner or to show cause within three weeks. It was thereafter that a counter affidavit was filed en the 12th of September, 1995 in which an allegation has been made that the petitioner was caught red handed while he was using unfair means in the examination. For not declaring the result is stated in paragraph 5 of the counter affidavit as under:
"That in reply to the contents of paragraph 4 of the writ petition it is stated that the petitioner who appeared in the year 1990 in the High School Examination and his centre was Moti Lal Inter College Saiya, Agra and he was allotted Roll No. 1092342. The petitioner caught red handed while he was using unfair means in the examination. Therefore on the ground of group copying. The result of the petitioner was withheld in W.B. List. It is further stated that the Disposal Committee also considered the case of the petitioner and found him guilty of using of unfair means in the High School examination of 1990. Hence result of the petitioner was cancelled and the petitioner was restrained from admitting in 1991 examination. It is further stated that the decision of the Disposal Committee was communicated to the petitioner through the Principal Janta Inter College, Kheragarh District Agra vide office letter No. Ma. Shi. Ka/Gop. 5/7448, dated 3-12-1990.
5. The petitioner's case is that it did not resort to any unfair means in the examination. According to him it appears that on certain complaints, the centre was sealed and the results of several candidates were "withheld. According to the petitioner, the results of several candidates have been declared and the petitioner has been harassed and discriminated and his right of education has been put in jeopardy and the respondent No. 1 has not replied to any of the representations made by the petitioner. In paragraph 10 of the writ petition it has been alleged that the petitioner has come to know that who ever goes and satisfies the need of respondents, his result is declared and that the petitioner is unable to meet the needs and requirements of the respondents.
6. The counter affidavit that was filed only after this Court issued an interim mandamus has been prepared and drafted in a perfunctary manner. The burden to show that the petitioner was guilty of using unfair means in the examination lay on the respondent No. 1 and it has not even disclosed the basic facts on which the allegation of using unfair means in the examination or of group copying could be made out. No document showing how the use unfair-means was detected and reported and a proper enquiry to meet the requirement of natural justice was made has been annexed to the counter affidavit. The allegation that the results of the other similarly situate candidates have been declared has not been denied and it . has not been explained how this solitary candidate could be accused of group copying if all others have been exonerated. The negligence in drafting the counter affidavit that is sworn by one Sri Sri Nath Pal, Assistant Secretary, Madhyamik Shiksha Parishad, Meerut is high lighted by the fact that allegation of correction made in paragraph 10 of the writ petition have not been controverted and in reply contained in paragraph 11 of the counter affidavit, it has been stated that the contents of paragraph 10 of the writ petition need no comments. This amounts to an unequivocal acceptance of the allegation that who ever greased the palms of the respondent No 1 was able to get his result declared. The facts clearly point out to the arbitraryness in the actions of the authorities concerned and the negligence in contesting the cases and assisting the Court in a proper manner.
7. The result is that the respondents have failed to establish that the petitioner misconducted himself in the examination so as to subject him to the penalty of withholding of his result. The right of education is a fundamental right and it cannot be taken away by an arbitrary action. The respondents have tried to justify their actions in withholding the result but have utterly failed to do so.
8. This writ petition is, accordingly, allowed and respondent No. 1 is directed to declare the result of the petitioner of the aforesaid examination forthwith. The petitioner will get his costs of this petition from respondent No. 1 that I assess at Rs. 5,000/- (Rs. five thousand).