H.L. Gokhale, C.J. - (1.) HEARD Dr. Y.K. Srivastava, Standing Counsel for the State of U.P. in support of this special appeal. Mr. Rajesh Yadav appears for respondent No. 1 Mr. Yatindra appears for the newly added respondent. 2.
(2.) THE special appeal seeks to challenge the judgment and order dated 22.2.2006 passed by a learned Judge of this Court whereby the learned Judge while allowing the writ petition filed by Uttar Pradesh Madhyamik Vitta Vihin Shikshak Kalyan Sanstha respondent No. 1, has struck down the conditions imposed in paragraph 5 of the Government Order dated 29.9.2005, which directs that at the time of examinations of High School and Intermediate conducted by the Intermediate Education Board, Uttar Pradesh (in short 'Board'), teachers having good reputation, which are either from the Government or Government aided institutions shall be appointed as Center Superintendents at non-aided examination centers and the Principals of that non-aided institutions shall be appointed as Additional Centre Superintendents. THE learned Judge has taken a view that there is no reason to distinguish between two equals and that it is impliedly discriminating between the two. THE learned Judge has also referred to and relied upon another judgment of another learned Judge rendered in Civil Misc. Writ Petition No. 2293 of 2005, Mohd. Yunus and others v. State of U.P. and others, decided on 28th February, 2005 with respect to the earlier policy of the State Government for examination of the earlier year. Dr. Srivastava, Standing Counsel, for the appellants drew our attention to a Division Bench judgment of this Court in Writ Petition No. 398 (M/B) of 2004, Vishal Verma v. State of U.P. and others, decided on 17th February, 2004. The petition was filed as Public Interest Litigation. The said judgment was prior to both these judgments and the petitioner therein had sought a direction that the Order dated 22nd December, 2003, by which direction had been issued for allotting examination Centres in the same school where the students were studying should be quashed. The Division Bench went into the question of jurisdiction of the Court to review the policy decisions of the Government and observed that the policy decision taken by the State or its authorities/instrumentalities is beyond the purview of judicial review unless the same is found to be arbitrary, unreasonable or in contravention of the statutory provisions or violates the rights of individual guaranteed under the Statute. The Division Bench referred to various judgments and particularly one rendered in the case of Maharashtra State Board of Secondary and Higher Secondary Education and others v. Paritosh Bhupesh Kurmarsheth, AIR 1984 SC 1543 to the same effect. In the judgment, the Division Bench also dealt with the problem of mass- copying and then observed as follows: "Considering the menace of mass-copying and the magnitude of using unfair means by students, we are of the view that purpose would be served and it will be in the interest of justice that 90% of the invigilators along with the Examination Superintendent be sent from outside schools and the local Principal shall be there to assist the said Superintendent. We dispose of this writ petition directing the respondents to take necessary measures immediately to have 90% of the invigilators and examination superintendent from outside schools. The Principal of the local college shall assist the said superintendent. The examination must be conducted as per the schedule already fixed and the State Government shall ensure the conducting of the examinations fairly taking all possible measures to prevent the use of unfair means by the students. This policy shall not apply universally for each and every school and decision must be taken by the Board as in which school the policy is to be adopted on some reasonable grounds." Dr. Srivastava submitted that the above Division Bench judgment has, thus, expressed its opinion that it would be desirable that 90% of the Invigilators along with Examination Superintendents should be outsiders and the local Principals should be there to assist the said Superintendents. The Division Bench also directed the State Government to take necessary measures as noted in the aforesaid paragraphs.
(3.) DR. Srivastava, therefore, contended that the earlier judgment of the learned Judge in the case of Mohd. Yunus (supra) as well as the judgment impugned in this special appeal, has ignored these aspects. That apart, he submitted that under the U.P. Intermediate Education Act, 1921, it was the responsibility of the Board to conduct examinations and the Board was answerable if there was any problem of mass- copying. It was for this purpose that the Board decided to appoint teachers of government colleges or of government aided colleges to be Centre Superintendents at centers of non-aided institutions, as they are answerable to the Board. Mr. Rajesh Yadav and Mr. Yatindra, counsel appearing for the respondents defended the judgment passed by the learned Judge submitting that there was no need to make distinction between two institutions and it cannot be said that mass-copying takes place only at those examination centers where invigilators from the private institutions are appointed. They emphasized the fact that in the earlier judgment of the learned Single Judge in Mohd. Yunus (supra), similar policy decision has been interfered with.;