ORDER
1. By this writ petition the petitioners have challenged the cancellation of their result of Intermediate Examination of 1990 by the Cancellation Committee of Meerut Region of U.P. Board of High School and Intermediate Examination (in short "cancellation committee").
2. Counter-affidavit has been filed by learned Standing Counsel on behalf of respondents Nos. 2 and 3, The counsel for the petitioner stated that no rejoinder-affidavit is necessary in this case and, therefore, the case can be disposed of at the stage of admission. It is accordingly being disposed of in accordance with the Rules of the Court at this stage.
3. The facts necessary for the purpose of this petition are that the petitioners appeared in Intermediate Examination of 1990 of U.P. Board of High School and Intermediate Education (in short 'Board') as students of O.F. Inter College, Marudnagar (in short 'College'). There is controversy between parties in respect of declaration of result of petitioners, the petitioners' assertion being that it was declared and mark-sheet was issued while according to contesting respondents the result was withheld due to case being of mass copying. In August, 1990 petitioners were asked to appear before an Inquiry Committee at Ghaziabad. At inquiry each of petitioner was asked to explain in respect of a numerical question of Physics as to how he solved question without attempting it on rough side of answer sheet. Each of the petitioner submitted his explanation to the inquiry committee. Subsequently, each of the petitioner was informed by Principal of the College that this result of Intermediate Examination held in 1990 has been cancelled in accordance, with confidential letter/order dated 5-1-1991 of the Deputy Secretary, MST Uttar Pradesh, Sub-Officer, Meerut as per the decision of the Cancellation Committee. The petitioners have challenged this order of cancellation of result by Cancellation Committee.
4. The first argument of learned Counsel for petitioner is that the Cancellation Committee has arbitrarily discriminated petitioners' case with that of Sunil Kumar whose case was identical to that of petitioners. The argument is that Sunil Kumar was also asked with petitioners to appear before the Committee on 23-8-1990 faced with identical charge but Cancellation Committee has not cancelled his result. The argument is unsustainable in absence of factual averments in writ petition. The petitioners have nowhere stated in the writ petition that the case of Sunil Kumar was identical to that of petitioners. The only averment made in para 13.8 of writ petition is that Sunil Kumar appeared along with the petitioners and also charge-sheeted on 23-8-1990 but was not punished and his result was not cancelled. The petitioners did not specify what were the charges legied against him when he was called upon to answer. All this was necessary before seeking relief on such a ground. The assertion of arbitrary discrimination has not been made in writ petition. The learned counsel for petitioners tried to argue on the basis of ground 'D' of writ petition to support his contention but in absence of factual averments in writ petition the argument is unsustainable. Averments of fact in writ petition are foundation for raising ground in a writ petition. The petitioners have not made necessary factual assertion, they have not laid the foundation for pressing the said ground of arbitrary discrimination and, therefore, the first argument raised by learned counsel for petitioners is rejected.
5. The second argument of learned counsel for petitioner is that the solvingof-numerical question without attempting it on rough side was not against any instructions issued to the candidates by the Board. He has argued on the basis of question papers that they do not contain any instructions for attempting question on rough side. To support this argument, no averment has been made in writ petition. The petitioners should have made specific factual averment in writ petition that such instructions were not there so that proper reply could have been submitted by contesting respondents. In absence of necessary averment in petition this argument also fails and is rejected.
6. The third and last argument of learned counsel for petitioners is that the Cancellation Committee did not had any power to cancel the result of petitioners on 5-1-1991, the date when it cancelled the result. He has placed reliance on Chapter VI-B Regns. 2(1)(a) and 4 of Regulations framed under Intermediate Education Act, 1921 and argued that the power of cancellation Committee ceased after 31-12-1990 to dispose of causes of use of un/air means.
7. Regulations 2(1)(a) and 4 of Chapter VI-B, which are relevant for the purpose of this petition, read as follows :
"2. Subject to the sanction and control of the Board, it shall be the duty of Committees referred to in Regulation 1--
(1) to consider cases where examinees have concealed any fact or made a false statement in their application forms or have committed a breach of rules of regulations to secure undue admission to an examination or have used or are suspected to have used unfair means or have committed fraud or impersonation at the examination or are guilty of an offence involving moral turpitude or indiscipline or have appeared in the examination with the help of amanuensis in contravention of the rules or run away with answer book or have destroyed the answer book, and to award penalty which may be one or more of the following:
(a) cancellation of the examination concerned, .....
.....
.....
4. Notwithstanding any thing contained in the regulations, any case of the kind referred to in Cl. (1) of Regulation 2, pertaining to the main examination of the Board which remains undisposed of by the Committee at the end of December following such examination, shall be disposed of by the Chairman."
8. From bare perusal of Regulation 4 read with Regulation 2(1)(a) of Chapter VI-B it is apparent that cases which remain un-
disposed of by the Committee of the Intermediate Examination Board at the end of December following the examination shall be disposed of by the Chairman. The learned Standing Counsel could not meet this argument on merit. He tried to assert that as Cancellation Committee actually deals with the matter so if it could not decide the matter up to 31-12-1990, it has disposed of the case soon thereafter. This argument of learned standing counsel has no force. Regulation 4 of Chapter VI-B is mandatory provision. It provides that cases which remains undisposed of till end of December shall be disposed of by Chairman. The effect of this provision is that the Cancellation Committee stands deprived of its power of dispose of cases of unfair means after 31-12-1990. For said reason 1 hold that in view of specific provision undisposed of cases of unfair means after December were to be disposed of by the Chairman and the order dated 5-1-1991 is liable to be quashed as it was beyond the scope of power of Cancellation Committee to cancel the result of petitioners on that date.
9. To meet the last argument on facts the learned standing counsel asked for time to file supplementary counter-affidavit for ascertaining factual position as to whether order was passed by Cancellation Committee on 5-1-1991 or earlier. I do not consider it necessary to grant time as the request came after close of argument of counsel for petitioner, who pointed out during arguments that a specific averment to this effect was made in para 13.7 of writ petition and ground 'B'. The fact about passing of order by Cancellation Committee on 5-1-1991 was not specifically denied in counter-affidavit, which would have been done had the averments been incorrect.
10. For aforesaid reasons the order of Cancellation Committee communicated by confidential letter/order No. NCP/Secracy-5/C/9172-2173 dated 5-1-1991 of the Deputy Secretary, MST Uttar Pradesh Sub-Office, Meerut contained in the letter of the Principal of O.F. Inter College, Marudnagar, Ghaziabad dated 12-11-1991 is quashed and respondents are directed to declare the result of the petitioners within a period of one month from the date of production of a certified copy of this order. It will be open for the Chairman of U.P. Board of High School and Intermediate Education to initiate fresh action against the petitioners, if he considers it to be necessary, within said period of one month.
11. The writ petition is allowed. Costs on parties. D/-20-5-92.
12. Petition allowed.