# S.K. Gangwar v. The Secretary, Board of High School & Intermediate and others

- **Citation:** (2001) 2 ILRA 75
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-k-gangwar-v-the-secretary-board-of-high-school-intermediate-and-others-39750
- **Pages:** 4

## Text

2All] S.K. Gangwar V. The Secretary, Board of High School & Intermediate and others

not permissible in law. They have to be
tried at one place C.J.M., Varanasi having
taken cognisance first is entitled to
proceed with the matter and the trial and
therefore report submitted by CBI is
required to be transferred to CJM court at
Varanasi since it shall be simply a report
under Section 173(8), Cr.P.C.

13. All the witness in the case
belong to Varanasi and the accused also
are all hailing from this very district. In
the circumstances, it will be highly
expedient to have this trial conducted at
Varanasi.

14. It will also be another question
whether the trial should proceed on the
basis of the local police challani report or
the report submitted by CBI. As earlier
stated, that the report submitted by CBI in
my opinion is clearly a supplementary
report in accordance with the provision of
Section 173(8) Cr.P.C., it shall be open
for the court concerned to look into it and
if anything new is there, it can frame
charges in accordance with it treating it as
a supplementary report. If some new
accused are also introduced in the report
of CBI, the court can take cognisance
against them as well. It shall be called
supplementary charge sheet and will be
received in accordance with law in
Varanasi Court.

15. In the result, the prayer that the
summoning order be quashed cannot be
entertained. However, in the interest of
justice the charge sheet submitted by CBI
at its special court at Lucknow stand
transferred to the court of Chief Judicial
Magistrate, Varanasi before whom the
earlier
charge-sheet
is
pending
for
commitment.
Special
Judge
(CBI),
Lucknow is directed to send this charge
sheet to the court of CJM, Varanasi as
soon as a copy of this order is received by
it.
With the above direction, this application
is disposed of finally.
Application Disposed of.

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By the Court

1. The short question that arises for
consideration in this petition is whether a
student
who
has
failed
Class
XI
examination can appear next year in Class
XII Intermediate Examination?

2. Both the petitioners were regular
students of A.S.N.. College, Gopalpur
Azizpur Bareilly (in brief institution).
They passed High School Examination in
1998. They studied in Class XI as regular
student for the session 1998-99 in Group
Cha "Krishi Varg". They could not get
through and failed in Class XI in the
home examination 1999. Next year they
appeared Intermediate Examination 2000
correspondence
course
under
the
Correspondence Education Scheme as
private candidates with subjects Literary
Hindi, Economics, Sociology and Wood
Craft. They were declared to have passed
in second division. By letter dated
18.7.2000
the
Regional
Secretary
Madhyamic
Shiksha
Parishad,
U.P.
Bareilly directed the petitioners to deposit
their original mark sheet of Intermediate
Examination 2000 with the Principal
Government Inter College, Bareilly. The
guardians of the petitioners contacted the
Principal of Government Inter College,
Bareilly who issued a show cause notice
on 21.7.2000 that petitioners had failed in
Class XI examination in Group Cha
"Kishi Varg" in academic session 199899, therefore, they could not appear in
Intermediate
examination
2000
correspondence
course
as
private
candidates.
On
8.8.2000
Regional
Secretary the respondent no.2 again
directed the petitioners to deposit their
mark sheet of Intermediate Examination
2000 with Principal Government Inter
College Bareilly otherwise penal action
will be taken against the petitioners.
Another letter was written on 12.9.2000
by Principal the respondent no.3 directing
the petitioners to deposit the mark sheet
of Intermediate Examination 2000. On
13.9.2000 a notice was published in the
newspapers
having
wide
circulation
stating that user of the mark sheet of
Intermediate Examination 2000 by the
petitioners
was
illegal
and
if
the
petitioners obtain admission or use the
2All] S.K. Gangwar V. The Secretary, Board of High School & Intermediate and others

mark sheet for any purposes it shall be the
sole responsibility of the petitioners. It is
this notice published in the newspaper
dated
13.9.2000,
which
has
been
challenged by the petitioners in these writ
petitions. The petitioners had prayed that
a direction be issued to the respondents
not to force the petitioners to surrender
the
mark
sheet
of
Intermediate
Examination
2000
issued
to
the
petitioners.

3. Shri Ashwani Kumar Mishra the
learned counsel for the petitioners has
urged that even if the petitioners failed in
Class XI examination in the session 199899 they could appear in Intermediate
Examination of session 1999-2000 as
private
candidate
under
the
correspondence course scheme as there is
no bar that a candidate who has failed in
Class XI examination conducted by the
institution cannot appear next year as
private
candidate
in
Intermediate
Examination 2000 in correspondence
course. The learned counsel further urged
that in Chapter XII Regulation 36 (2) of
the Regulations framed under the U.P.
Intermediate Education Act 1921 the
correspondence course shall be normally
for a period of two academic sessions but
Additional
Director
of
Education(Correspondence Course) can
make necessary changes. Chapter XII
Regulation 36(2) of the Regulations is
extracted below:-

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The learned counsel relying on the
Regulation extracted above argued that
the academic session could be of one year
as well. The learned counsel submitted
that in any case the petitioners having
appeared and their results having been
declared in which they passed the
respondents are estopped from cancelling
the result of the petitioners or treating the
candidature of the petitioners in Class XII
of the correspondence course to be illegal.
On the other hand, Shri A.K. Banerjii the
learned
standing
counsel
for
the
respondents has urged that unless the
student is declared pass in Class XI
examination he cannot appear in Class
XII examination or final Intermediate
Examination either as a regular candidate
or as a private candidate under the
correspondence course scheme.

4. The correspondence course
education scheme has been provided in
Chapter-XII of the Regulations. It clearly
provides that academic session shall be
normally for a period of two years. It
clearly means that the student in the first
year has to pass Class XI examination
under correspondence course scheme and
the next year he has to appear in final
examination.
The
scheme
does
not
provide that the candidate who has failed
in Class XI examination as a regular
student can appear next year in final year
Intermediate Examination as a private
candidate
under
the
correspondence
course scheme. The argument of the
learned counsel for the petitioner that
there is no bar under the correspondence
course scheme that a regular student who
has failed in Class XI examination could
appear in final examination cannot be
accepted. It is true that the Additional
Director of Education (Correspondence
Course) could make modification in the
78 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
academic session but it does not mean
that two years session can be reduced to
one year or it has to be read as one year.
Moreover, no order has been passed by
Additional
Director
of
Education
(Correspondence Course) reducing the
correspondence course from two years to
one year. Therefore, the petitioners were
not eligible to appear in final year
examination
of
Class
XII
under
correspondence course scheme as the had
not studied for two academic sessions
under the correspondence course scheme.
Even if the petitioners have appeared in
the examination of Class XII and their
result had been declared it could not
confer any right on the petitioners. The
respondents have rightly directed the
petitioners to return the mark sheet of
Intermediate Examination 2000 and are in
process of cancelling the result of the
petitioners. The argument of estoppel is
not available. It is a principle of equity. It
can be invoked for sake of justice and not
for
perpetuating
illegality.
If
the
submission
founded
on
estoppel
is
accepted it would not only be against
Regulations
but
illegal
and
unjust.
Therefore,
the
petitioners
were
not
entitled
to
appear
in
Intermediate
Examination 2000. Since petitioners did
not disclose correct facts, they cannot be
permitted to derive any benefit of their
own wrong. The respondents have rightly
directed the petitioners to deposit the
mark sheet of intermediate Examination
2000. I do not find any merit in all the
submissions of the learned counsel for the
petitioners.

5. For the aforesaid reasons, I do not
find any merit in the writ petition. The
writ petition fails and is accordingly
dismissed.
Petition Dismissed

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