Heard Sri B.B. Jauhari, learned counsel for the petitioner, and the learned Standing Counsel for the respondent. Affidavits have been exchanged between the parties, and as such the matter is being disposed of finally at this stage.
The petitioner came up before this Court with a case that the results of the scrutiny were not informed to him and that he had applied for scrutiny in the First Paper of Physics and Second Paper of Chemistry. The contention is that the petitioner had obtained on the average very good marks in all other subjects and there was no reason to award him only 38 marks in the Science paper of the High School Examinations, 2006.
The petitioner had applied for scrutiny. The contention is that the results of scrutiny were not made known and even otherwise the scrutiny does not appear to have been carried out in accordance with the rules applicable.
Learned counsel for the petitioner Sri Jauhari contends that a notification was issued on 16th December, 2006 informing the candidates that such matters which have not been finalized in relation to scrutiny, their results shall be informed later on.
He contends that no intimation worth the name was given to the petitioner which compelled the petitioner to file the present writ petition calling upon the respondents to produce the answer books of the petitioner in relation to the aforesaid two papers of science.
This court entertained the petition and issued notices to the respondents. They were also called upon to produce the answer books vide order dated 4th April, 2007. The respondents informed the Court that the answer books had already been weeded out. On this the Board was called upon to file an affidavit through a responsible Officer indicating the date on which the answer sheet has been weeded out and also enclose a copy of the order or the notification under which the weeding out was carried out.
The compliance affidavit was filed on 10th May, 2007 bringing on record the rules applicable for weeding out and the period prescribed for the weeding out of the documents relating to the Board including examinations and also answer books.
A supplementary affidavit has been filed by the petitioner contending that no intimation was given as required under the notification dated 23.12.2006. Even otherwise no news was published in any newspaper about the results of scrutiny.
A supplementary counter affidavit has been filed to the same annexing therewith the notification as also the individual information tendered to the petitioner on 23.12.2006. A response to the same has been filed denying the receipt of any such information by the Board.
The contention of the petitioner therefore is that no intimation was given about the results of the scrutiny, and in such a situation, the answer books of the petitioner could not have been weeded out keeping in view the provision made at Item No. 180 of the period prescribed for retention of records and their weeding out by the Board.
Sri Jauhari contends that the respondents have not complied with either the rules or their own norms prescribed for weeding out and, hence the petitioner deserves to be awarded average marks keeping in view the marks obtained by the petitioner in other subjects for the High School Examinations, 2006.
Replying to the aforesaid submissions, learned Standing Counsel contends that firstly the intimation had been given by way of a notification as also individually to the petitioner and even otherwise marked answer books are supposed to be retained only for a period of six months after the examinations or till the results of the scrutiny are over as per Item No. 45 of the norms meant for retention of the documents and their weeding out. It is therefore submitted that these norms have been followed and the petitioner has not made out any case for interference under Article 226 of the Constitution of India.
In rejoinder Sri Jauhari submits that there is no material on record to indicate that the notices were served or even otherwise the petitioner was informed about the scrutiny. Nonetheless the answer books ought to have been retained in view of the provisions of the Board itself and if they had to be weeded out, the same should have been done after notifying the same.
Having heard learned counsel for the parties, Annexure CA-1 to the counter affidavit dated 1.5.2007 filed on behalf of the State indicates that the matter was notified with information to the editors of Hindi Daily "Amar Ujala" and "Dainik Jagaran" from Bareilly and Moradabad. There is nothing on record to indicate that the said news items were not published. In such a situation, it will be presumed that the news had been published and therefore the petitioner must be having knowledge about the declaration of the results of the scrutiny.
It is correct that there is no material on record to indicate as to how the individual notice was sent to the petitioner yet there does not appear to be any malafide on the part of the respondents in withholding this information when such information has been tendered to all similarly situate students. The information of the scrutiny results will therefore be deemed to have been made known to the petitioner.
Sri Jauhari further submits that the regulations itself provides for supplying a stamped envelope by the candidate which is compulsory and which is only for the purpose of informing the candidate about the results of the scrutiny individually. He submits that such an envelope was supplied and the respondents also indicate that they have sent this information but there is no evidence of any service of such an envelope.
Even assuming for the sake of arguments that such an envelope had been sent and it has not been received by the petitioner as alleged by him, nonetheless the notification in the newspaper, in the opinion of the court is a sufficient notice for the said purpose. There is no prohibition under the regulations that a notification under the newspaper will not be presumed to be sufficient notice to the petitioner. Even otherwise, it is settled law that where there are two modes of service available and one of the reasonable modes have been adopted, which is not prohibited under the regulations, then it will be presumed that the petitioner had notice through newspapers. It is further to be noted that the petitioner admits having read the notification dated 16.12.2006. He has not brought any material on record to indicate that the notification dated 23.12.2006 was not published in "Dainik Jagaran" or "Amar Ujala". Accordingly, there is no merit in this contention as well.
Apart from this, so far as the issue raised in relation to Item No. 180 of norms is concerned, in my opinion, the same would not be applicable, inasmuch as, if the scrutiny has been carried out and the results have been declared, then Item No. 45 would be applicable whereby the Board is empowered to weed out the answer books after retaining it for six months.
Accordingly, on none of the grounds the petitioner is able to make out any case under Article 226 of the Constitution of India. The writ petition lacks merit and is accordingly dismissed.
Order Date :- 12.4.2012 Sahu