IMPORTANT POINT
Proceedings taken against appellant for using unfair means in examination are quashed in the peculiar facts and circumstances of the case. The appellant shall be deemed to have passed the HSC Exam. in the first attempt without any stigma.

JUDGMENT

R.C. Lahoti. J.-Leave granted.

2. Chandra Shekhar Panigrahi, the appellant s son, was a candidate for Annual HSC Examination, 2001 appearing in all subjects of the Board of Secondary Education, Orissa along with Third Language Oriya (TLO). On 20.3.2001 while the examination was being held a flying squad visited the examination hall wherein the appellant s son was sitting. A piece of paper containing some Sanskrit scripts was found lying near his table. The flying squad seized the paper and prepared a report showing the appellant s son as having adopted unfair means in the examination. On 26.5.2001 the Board of Secondary Education, Orissa (hereinafter, the BSE) issued a show cause notice accusing Chandra Shekhar of being in possession of incriminating materials in the examination hall. Chandra Shekhar controverted the allegation defending himself on all the counts. However, his result was withheld. Feeling aggrieved, the appellant filed a writ petition in the High Court of Orissa, which was dismissed. This is an appeal by special leave.

3. According to the respondent-Board, it is true that the seized piece of paper was of no use for Chandra Shekhar, as it contained no material which could have had any relevance to the Paper which was being answered by Chandra Shekhar. Nevertheless, that slip could be useful for other students who were sitting in the same hall. As per the rules of the Board and the instructions in the Admit Card issued to the candidates, no candidate shall possess or use any incriminating material in the examination hall. Inasmuch as the candidate committed a breach of the rule, the same would amount to malpractice and therefore the action taken against the candidate was justified.

4. According to the appellant, Chandra Shekhar has never committed any malpractice. He has been a brilliant student throughout his educational career, having secured first-class and places of merit in all the examinations undertaken by him, and this year too he has secured a first-class. There was no reason and no occasion for him to take a slip in the examination hall, much less a slip which was of no relevance or use for him.

5. During the course of hearing in this Court, upon the request of the appellant, the respondent-Board has made available the record of the proceedings dated 20.3.2001 from its custody. Without entering into an enquiry into disputed questions of fact and recording a finding thereon, suffice it for our purpose to notice two glaring facts. The report which is alleged to have been prepared on the date of the incident under signatures of the Central Superintendent is in a proforma prescribed for the purpose of preparing a report of any malpractice detected at the examination hall/centre. The proforma contemplates column numbers 16 and 17 being signed by the invigilator, but the invigilator has not signed the report. Admittedly the centre superintendent, who has signed the report, was not present in the hail. Then there is controversy, firstly, as to whether the seized material was a handwritten slip or a printed paper, and secondly, as to whether the paper was seized .from the floor of the examination hall or from inside the pocket. Two facts are undisputed: firstly, that the seized paper was not related with the examination -- as per column 20 of the proforma report, and secondly, it was not used - as per column 11 of the proforma report. In these proceedings the candidate has lost one year and at the subsequent examination taken by him he has come out with flying colours.

6. We have some doubts if the material (slip of paper) was really seized in the manner in which it is alleged to have been seized. We leave the matter at that. We asked the learned counsel for the appellant that in view of the candidate having already cleared the examination and that too with first division why is he interested in pursuing the matter in the Court? The learned counsel stated, under instructions, that the candidate, a meritori