- (1.) R. R. K. Trivedi, J. In this writ peti tion, counter and rejoinder affidavits have been exchanged. Learned Counsel for the parties have agreed that this writ petition may be decided finally at this stage.
(2.) FACTS giving rise to this writ peti tion are that petitioner Santosh Kumar appeared in High School Examination of 1983 with Roll No. 713306. The result of the petitioner was withheld under the head 'w. B'. There were allegations of using unfairmeans against him. In Civil Misc. Writ Petition No. 10276 of 1983 however this Court on 19th September, 1983 gave a general direction to the U. P. Board of High School and Intermediate Education (hereinafter referred to as (Board') to issue provisional mark-sheet to the students whose results have been withheld. The direction issued is being reproduced below: "in cases of mass copying the Board will pass the final order within 15 days from today; and where the charge is of being caught red-handed the Board will pass final orders within six weeks from the date the candidate gives his explanation. In any case, in which the Board is unable to pass final orders within the aforesaid period, it will forthwith give to the respective candidates their marks-sheet provisionalty. In each case where the marks-sheet it given provisionally, the Board may make the requisite endorsement. " In pursuance of the aforesaid direction, a provisional marks-sheet was issued to petitioner and on the basis of this marks- sheet he got himself admitted in next higher class and continued to pursue his studies. However, the Unfairmeans Disposal Committee by order dated 28th December, 1983 cancelled the petitioner's High School Examination of 1983. It has been claimed by the respondent in the counter- affidavit as well as in supplemen tary counter-affidavit that the conclusion of the Unfairmeans Committee was com municated to the Petitioner through the Principal of the College from which he appeared in High School Examination. As averred in Paragraph No. 8 of the writ petition, on 9th August, 1994 petitioner approached the Board and applied for is suance of his High School mark- sheet and Certificate on the basis of the examination of 1983. On this application being made, Board by the impugned order dated 9th August, "1994 communicated petitioner that his High School Examination was al ready cancelled and mark-sheet and cer tificate cannot be issued. Aggrieved by the aforesaid order (Annexure-8 to this writ petition), this writ petition has been filed, seeking relief that the impugned order dated 9th August, 1994 (Annexure- 8) may be quashed and respondent may be directed to issue mark-sheet and Certifi cate of High School Examination of 1983. In counter affidavit and supplementary counter-affidavit it has been specifically averred that the result of the petitioner was cancelled by the Disposal Committee on 28th December, 1983 and information of which was given to the Principal of the college concerned from where petitioner had appeared in the Board Examination of 1983. The record of the High School Ex amination of 1983 has been weeded out as per Government Orders issued and is not available for being produced before the Court for perusal. It has been further submitted that the impugned order (An-nexure-8) has been issued on basis of Tabulation Register which is maintained for a period of 50 years, which contains an entry to this effect. Petitioner on basis of the provisional mark-sheet issued to him con tained his studies and passed Intermediate Examination in the year 1986 and B. A. in 1989 and L. L. B. Examination in 1993 from Poorvanchal University.
(3.) LEARNED Counsel for the petitioner has submitted that the petitioner was not at fault at any stage and the decision of the Disposal Committee dated 28th Decem ber, 1983 was never communicated to him. LEARNED Counsel has submitted that it is not open now to the respondent to allege that the examination of the petitioner for High School of 1983 was cancelled. I have considered the submissions of the learned Counsel for the petitioner and learned standing Counsel and in my opinion, the contention advanced on be--half of the petitioner cannot be accepted. It is not disputed that the result of petitioner was withheld and only a provisional mark-sheet was issued to him on basis of the general direction given by this Court in another, writ petition. He never made effort to know the result of action taken against him on the allegation of using unfairness or to obtain the mark-sheet or the certificate from the Board for long period. He for the first time applied for issue of the mark-sheet and the certifi cate in the year 1994 i. e. after 11 years, when he sought enrollment in Bar Coun sel as an Advocate and he could not be enrolled in absence of High School Cer tificate. But for this strict rule or practice of Bar Council be may not have even at tempted in 1994 to obtain his High School Certificate from Board. In the circumstan ces it cannot be said that the respondent Board was responsible in any manner for this unfortunate situation. As the record has been weeded but it is not possible for this Court to say that the decision of the Disposal Committee suffered from any legal infirmity and the result of the petitioner was cancelled in arbitrary man ner and no interference is possible by this Court under Article 226 of the Constitution in such facts and circumstances. So far as the fact of notice to petitioner about cancellation in concerned, there is nothing before this Court to disbelieve the aver ment made on behalf of the Board which is based on record. This is a question of fact and in these proceedings it is not possible to record any positive finding. In the cir cumstances the relief sought by petitioner cannot be granted. However since petitioner has already completed his academic career so far as further studies are concerned, it shall not be proper to deprive him of the fruits of his further studies on the ground that he could not peruse the same as he had not passed High School Examination. In peculiar facts and circumstances of this case, it shall be in the interest of justice, if he is allowed an op portunity to appear in the High School Examination and pass it.;