TaxTMI 
TaxTMI 
1987 (6) TMI 395
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....irect personal contact with the tutor by forming smaller groups or otherwise so that personal attention can be given while coaching them and the education is more effective and the assessment of their merit can be made more real. With a view to encourage students to do continuous study throughout the course, one way is to officially allot some percentage of marks for such work by those who have opportunity to personally watch a student from a close range. To qualify for an examination certain amount of practical work is made compulsory. This record, which in many cases is called 'journal', has to be maintained by the students. The journal is scrutinised by the concerned teachers from time to time, and those students who have completed the course of experiments in practicals as prescribed are issued a completion certificate. Sometimes even marksare allotted for the said journal. That way the 'percentage of marks allotted to the practical examinations is comparatively smaller, but even a fraction of mark matters specially at a higher level where there is tough competition for admission to certain coveted courses, such as Engineering, Medical, Business Management, etc. Stu....
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....nation of XII class conducted by the College. In XII standard examination conducted by the Board, she secured the following marks in Science group of subject out of total 100 marks -- 80 marks in theory plus 20 marks in practical : -- Theory Practical Total Chemistry 73 20 93 Biology 56 20 76 Physics 67 9 76 4. The gist of the petitioner's case is this : She wanted to join the Medical College, for which relevant marks are in the subjects Physics, Chemistry and Biology. Singh was her Physics teacher. He was conducting a private coaching class. Many students, a list of which is referred to in the petition, had joined the said coaching class. Jyoti was also one of them. But finding that Singh was concentrating more on Mathematics -- a subject in which the petitioner was not interested -- She stopped attending the coaching class. Singh used to give warnings in the class to the students who did not join the coaching class. He directly warned Jyoti sometime between October -- December 1985 saying that 'I will see as to how you go to the Medical College'. Jyoti reported the said matter to her father, but she was advised to be tactful and not to antagonise Sing....
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.... the house of Smgh. Some of the students who had joined the private tuition class of Singh had also gone to the house of Singh and were permitted to correct their answer papers. In their answer papers marks were allotted thereafter. The incident of the students going to the house of Singh was reported by Jyoti to the principal who reprimanded Singh and Dhage for violating the Rules and Instructions issued by the Board. Jyoti's father lodged a complaint dated 24-2-1986 (Ann.-D) to (he Board stating all these facts and requested for enquiry into the matter. The said complaint was sent by registered post on 27th Feb. 1986 and thereafter Jyoti's father met the Office bearers of the Board on 16-6-1986, 23-6-1986 and 19-9-1986 and pressed for an enquiry into the matter. Jyoti's father was asked to approach the Court of law. Jyoti's father received a writing dated 2-7-1986 from Singh (Ann.-F), substance of which is somewhat this : You are propagating against me about the less marks allotted to your daughter though I always tried for her welfare, gave her coaching for two years free of cost and, under the circumstances, a sum of ₹ 700/- or such other amount as you....
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....9;s father are good. He admits to have sent the writing (Ann.-F) to Jyoti's father. His version is that he felt very much for the behaviour of Jyoti's father. In order to shut the mouth of the father of Jyoti, he wrote that letter and because of that letter the petitioner's father stopped his defamation. He specifically denies that he has 'demanded ₹ 700/-towards private tuition as alleged'. He further contends that the relations between the Principal and Jyoti's father were also good and, therefore, on 22nd Feb. 1986 the Principal had handed over one chit to him containing the names of the students who should receive favourable treatment in the matter of allotment of marks. The petitioner has filed an affidavit of one Jagdish Jhakhotia to the effect that Singh used to conduct private coaching class at his residence, used to charge tuition fees and that he was one of those who had joined the said class from August 1985 to January 1986. It further mentions that Singh used to say in the class room that he would give maximum marks to those who would join the private tuition class conducted by him. 6. Now, in the matter of allotment of marks, discretion ....
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.... and is not exhaustive. Thus, at least in the situations contemplated above, the assessment of an examination can be amended irrespective of the question as to who has brought about that situation. Even exercise of a discretionary power is vitiated if it is actuated by motives other than those for which power is granted. Bad faith vitiates the discretion. The concept of bad faith eludes precise definition. Amongst unending examples can be malice, dishonesty, vengeance, manipulation, fraud, etc. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. 7. The petitioner has made pretty serious allegations against the third respondent. If they are adjudged to be substantially correct, it is plain that result of the Physics practical examination of the petitioner is vitiated. The learned counsel for the third respondent, Shri S. A. Jaiswal, is right when he contends that burden of proof heavily lies on the petitioner and if the result of the petition depends upon disputed question of fact the normal remedy in such matters is to approach a civil Court. Civil suit is a long drawn tiresome process to wh....
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.... fact of filing of the written complaint by Jyoti's fatherto the Principal two days before the commencement of the practical examination in Physics. The Principal has admitted its receipt and he says that he had even forwarded the same forthwith to the management. There is no reason to doubt the correctness of this allegation in the background. Why should Jyoti or her father take the risk of antagonising an examiner just before the examination. Provocation must be grave, reasons must be compelling. There is even other material to corroborate this version. The certificate on the journal which should normally be signed by Singh is signed by the Principal. Singh's version that Jyoti never produced her journal before him in time does not appeal to us. It does not appeal to the reason at all that a student like Jyoti will keep the journal unready and not produce it for verification before the teacher in charge. It is also pertinent to notice that she is the only student whose journal is not signed by Singh. Lodging of the written complaint (Annexure-D) to the Board immediately after the practical examination and the efforts by Jyoti's father to move the machinery of the Boar....
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....e dismissed as a myth. Moredirect evidence of malpractice, though desirable, is impossible to be obtained. Thus, havinggiven the matter our anxious consideration, our finding is that Singh was conducting private coaching class for consideration, that Jyoti was deliberately awarded less marks and that it was Singh who was responsible for the same. 13. Singh has filed a chit in the handwriting of the Principal containing the names of as many as 11 students, including Jyoti, According to him, that chit was sent to him by the Principal at the timeof examination with a message that the students named in the chit should be given higher marks than they deserved, and that he had refused to 'oblige. The Principal's version is thatthe said chit was sent long before with a message that the journals of those students had remained to be certified and should be certified. It ispertinent to notice that some of the students mentioned in the said chit are those in whose cases favouritism is alleged in the petition. In the whole background story put by the respondent No. 3 about the circumstances in which the said chit was received by him appears to be unnatural. 14. True it is that there ....