Jasraj Chopra, J.
1. These six writ petitions arise out of the same order dated 3rd/7th July 1989 passed by the Controller of Examinations, Rajasthan Agricultural University, Bikaner where by the Board of Management of the Rajasthan Agricultural University, Bikaner has confirmed this punishment of current examinations cancelled imposed against the petitioners for using unfair means in the examinations of 1988.
2. The facts necessary to be noticed for the disposal of this writ petition briefly, stated are: that the academic career of the petitioners is meritorious. They have secured first Division marks in all public examinations in which they appeared and, therefore, they took entrance test of PMT/PVT for the purpose of degree course of BVSC & Animal Husbandary in the then Mohan Lal Sukhadiya University, Udaipur They were successful and were admitted. They passed their first year examinations of the BVSC and Animal Husbandary degree course from the Mohan Lal Sukhadiya University of Udaipur in the year 1987 but later, it appears that the Govt, of Rajasthan thought it fit to establish an Agricultural University viz. Rajasthan Agriculture University, Bikaner and, therefore, the faculty of Veterinary Science and Animal Husbandary of Mohan Lal Sukhadiya University, Udaipur has been put under the control of Rajasthan Agriculture University, Bikaner and the petitioners are prosecuting their studies under the newly established University i.e. Rajasthan Agriculture University, Bikaner.
3. It is alleged that while giving the paper of Dairy Science on 24.11.1988, the petitioners were found guilty of using unfair means in the said examination. It was found that there was something written on their admission cards and, therefore, the invigilator took their admission cards in his possession, obtained statements from them individually and forwarded the same with his report if the Examiner concerned and supplied to their in the second answer book for solving remaining question. Thereafter, by letter dated 3.4.1989, the Controller of Examinations of Mohan Lal Sukhadiya University, Udaipur informed the petitioners that their names have been reported to the University from the Centre of Examination for having used unfair means in the paper of Dairy Science of II nd Year BVSC & Animal Husbandary Examination held on 24.11.1988 and the Results Committee at its meeting held on 4.3.1989, after considering the relevant material has proposed the punishment of current examination cancelled' to be awarded for the alleged use of unfair means as per Rules. In that letter, the reports of the Invigilator and of the Centre Superintendent were set out and the petitioners were called upon to show cause within 15 days from the date of letter as to why proposed punishment may not be awarded against them. The petitioners submitted their replies in writing. The petitioners Shri Subendu Dixit and Shashank Manohar have filed their replies along with the writ petitions marked as Annexures-2 in their respective writ petition. The other petitioners have not filed copies of their replies. Thereafter, by order dated 3rd/7th July, 1989, the punishment of 'current examinations cancelled' against the petitioner for using unfair means in the examinations of 1988 has been confirmed by the Board of Management of the Rajasthan Agriculture University, Bikaner. It is alleged that while proceeding were so going on, the petitioners were permitted to sit in the IIIrd Year Classes till the College closed for summer vacation in May, 1989. However, the petitioners were allowed to continue their IIIrd Year studies under the orders of the Court.
4. Be that as it may, the petitioners have contended that sofaras known to them, no Ordinance of the respondent Rajasthan Agriculture University, Bikaner have been framed and all that has been done is that the Mohan Lal Sukhadiya University Udaipur has conducted the examination and instruction to Centre Superintendent were issued by the said University, which were also made available to the student on demand. The photocopy of the instructions to Superintendent of Examination Centre have been filed along with the writ petitions (Marked as Annexure -4 in Subendu Dixit's case) The term 'unfair means' stands described at pages 4 and 5. On the said instructions. It further prescribes the procedure and norms of punishment.
5. It was contended on behalf of the petitioners that they never undulged in unfair means. Nothing was found in their possession and what was found in their possession was not relevant to the examination concerned and therefore their case is not covered by clause (iii) set out at Page -5 of the aforesaid Instructions. It is not the case of the respondent University that while giving the said examination, the petitioner has used the material found in his possession. In certain cases, it has been alleged that properties of buffalo Cow and milk were noted by them on their admission cards and no question related to that classification and, therefore use of this material could not have been made during the examination. In the case of petitioner Vinod Kumar it has been reported that whatever was written on the admission card was found rubbed off and it is not the case of the respondent University that this rubbing was made in the presence of the Invigilator and any use of its was made. Rather, in some cases, the Examiner has gone to the extent of saying that the petitioners could not have made use of the matter in such a way that it could have assisted their in getting any higher marks. According to the petitioners the proceedings taken for punishment being imposed on any candidate are quasi judicial in nature and, therefore, such proceeding must be conducted in accordance with the principles of natural justice and one of such principle being that of ultimate order must be a speaking order. It is not indicated in the order of punishment to what was the material available on the basis of which punishment has been imposed. It has also not been disclosed as to what the reason on the basis of which the conclusion about the guilt of the petitioner has bean arrived at. Thus, according to the petitioner, the order of punishment soon not even contain the bare bones of the finding and thus, it is in breach of the principles of natural justice.
6. It was also contended that proceedings were initiated by Mohan Lal Sukhadiya University and the punishments were awarded by the respondent University i.e. Rajasthan Agriculture University, Bikaner. The petitioners were not the student of Mohan Lal Sukhadiya University and therfore, how and in what circumstances Mohan Lal Sukhadiya University came to initiate the proceeding is a mystry. According to the pet it owners, initiation of proceedings by one University and the imposition of penalty by another University cannot be reconciled and so, the proceeding must fail. It was contended that the petitioners were not supplied any material, on the basis of which, punishment has been imposed. They have also not been afforded an opportunity of personal hearing. The punishment order is based on no evidence what soover because no proceedings took place and if any proceedings did take place, they were taken at the back of the petitioners. Such a serious matter cannot be permitted to be decided in this manner. Merely because, the proceedings are not judicial and Evidence Act does not in terms apply to these proceedings, what is not evidence cannot be treated to be evidence as such.
7. No detailed reply has been filed on behalf of the respondent University. However, an application under Article 226(3) of the Constitution has been filed in which all the relevant facts have been pleaded by the respondent University and it has remained satisfied with the pleas that have been taken by them in the application filed under Article 226(3) of the Constitution and they agreed to the final disposal of these writ petitions on the basis of the averments contained in the application under Article 226(3) of the Constitution.
8. According to the respondents the petitioners were caught red-handed by the Invigilator with their admission cards, in which they have made certain notings. The petitioner has submitted that they have made those notings' while making preparations of the subject. The Invigilator therefore made a report that the statements of the petitioners were recorded in the answer books itself and they were forwarded to the University along with the admission card for necessary action The Photostat copies of the statements of the petitioners along with the statements of Invigilator have been filed along with this application marked as annexure Rule l. The Photostat copies of the admission cards have been filed and marked as Annexure Rule 2. It was submitted that the petitioners gave their own statements as their own accord without any advice or pressure and the report of the Invigilator along with the material recovered from the petitioners with their statements were sent to the Examiner and his report has been filed and marked as Annexure Rule 3. Thereafter, the Unfair-means Committee examined the entire material on record and proposed the punishment of cancellation of examination on 4.3.1989, and a show cause notice was issued to the petitioners and they gave their reply, the substance of which has been recorded in Annexure-Rule 5. The unfair means Committee again considered the entire material on 25.5.1989 and came to the conclusion that the proposed punishment was correct. The Photostat copies of the report of Unfair-means Committee dated 4.3.1989 and 25.5.1989 have been filed and marked Annexures Rule 4 and Rule 5, Annexure R-6 is copy of the proceeding of the Management Board in meeting held on 17.6.1989. Annexure Rule 7 is the letter, which was written by the Vice Chancellor of the Rajasthan Agriculture University to the Vice Chancellor of the Mohan Lal Sukhadiya University for conducting annual examinations of the College of the Rajasthan Agricultural University for the academic year 1987-1988. In pursuance of Annexure Rule 7 the Management Board of the Mohan Lal Sukhadiya University resolved that all examinations of Rajasthan Agriculture University, Bikaner be conducted through Mohan Lal Sukhadiya University. It was in this context, that the examinations were held under the suspicious of Mohan Lal Sukhadiya University but the Unfair-means committee was constituted by the Rajasthan Agriculture University. Final decision has also been taken by the Rajasthan Agriculture University. It was submitted that bifurcation of Rajasthan Agriculture University from Mohan Lal Sukhadiya University had taken place on 1.8.87 and it was essential to make the above arrangement for the transactional period. The enquiry conducted has been abosltitely fair and there has been no violation of principles of natural justice. The punishments imposed against the petitioners are based on their admissions made in their statements recorded by the Invigilator. It was submitted that copying in the University examinations has been a great menace and it has to be done away with strictly failing which it may destroy the entire examination system.
9. Petitioner Subendu Dixit has filed a rejoinder to the reply to the writ petition as well as supplementary rejoinder to the reply to the writ petition. It was contended that the statement that has been given by the petitioner was not his voluntary act but he was told by the invigilator that if he writes as dictated by him he will be exonerated and being in the situation in which the petitioner was, believing what the invigilator told him, gave the statement. It was also contended that Annexures Rule l and Rule 2 were not sent to the petitioner along with the notice and, therefore, no undue advantage can be taken of this statement. It was next contended that when there was no material on record, it is futile to contend that the entire material on record was considered by the unfair means committee. The Board of Management has also not applied its mind. As regards the submissions made in Pares 9 and 10 of the application filed under Article 226(3) of the Constitution, it was contended that whatever might have transpired between the Vice Chancellor of the Rajasthan Agriculture University, Bikaner and the authorities of Mohan Lal Sukhadiya University were never made public so that nobody knew about it and then the legality of all that which is referred to in Paras 9 and 10 still open to doubt. It was submitted that the material relied upon by the unfair means committee or the Board of Management was never notified to the petitioner so as to enable him to make his submissions, and therefore, it is evident that principles of natural justice stand violated. The petitioner was never told about admission as such it was not even indicated that the so called admission mean by him is going to be relied upon so that he could have stated as to what he is to say about it. It was submitted that relying upon any material without notifying the name to the person against whom it is to be utilize is a breach of the principles of natural justice.
10. I have heard Mr. M. Mridual, Mr. K.N. Joshi and Mr. G.K.Vyas, the learned Counsel appearing for the petitioners and Mr. H.N. Parekh, the learned Counsel appearing for the respondents. I have carefully gone through the record of the case.
11. It is the well settled law that when the Examination Committee examines the cases of the examinees using unfair means, it acts quasi-judicially and, therefore, the principles of audi alteram partem and all other principles of natural justice apply to such decisions of such domestic Tribunals. Reference in this connection may be made to the Board of High School v. Ghanshyam : AIR1962SC1110 , wherein it has been observed:
There is no doubt that many of the powers of the Committee under Chap. VI are of administrative nature, but where quasi judicial duties are entrusted to an administrative body like this it become a quasi judicial body for performing those duties, and it can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case its given to the examinee.
In this connection, reliance has also been placed on Pullangoda Rubber Produce Co. v. State of Kerala : [1973]9ITR18(SC) ; B.E. Supply Co. v. The Workmen : (1971)IILLJ407SC ; Prem Frakash v. Punjab University AIR 1972 SC 1409. Board of High School and Intermediate Education, U.P. v. Bagleshwar Pd. : [1963]3SCR767 ; 0m Prakash v. University of Rajasthan 1975 WLN (UC)-94; Mahendra Mathur v. University of Udaipur 1979 WLN (UC) 196; Dilip Kumar Patni v. State of Raj. and Ors. 1986 RLR-314; North Bihar Agency v. State of Bihar 1981 SCC 131; Ranjit Thakur v. U.O.I. AIR 1987 SC 238; S.L. Kapoor v. Jagmohan AIR 1981 SC 135; H.L. Trehan v. U.O.I. 1989 (1) SLR-7; Dilip Singh v. The University of Jodhpur 1978 WLN (UC)-462, Central Inland Water Transport Corporation v. Brojo Nath Ganguly 19863 SCC 156, Indra Mathi v. Board of Secondary Education and Vinod kumar v. State of Punjab .
12. It is also well settled that there are two essential ingredients underlying the principles of natural justice:
1. That no man should be judged without a hearing: and
2. That the judge hearing must be free from bias. These two essential ingredients have been set out in a decision of the Madras High Court In Bright Son Jose v. Madurai Kamraj University : AIR1982Mad79 . Where in it has been observed:
There are often cited in the form of latin tage audi al team partem and memo index in re aua. The appellants contention is that there is violation of principle of natural justlce,since the first requirement audi alteram partem had not been complied with in Offical Solicitor v. K. 1965 AC 201,it was hald:
The requirements of natural justice must depend on circumstances of the case, the nature of the inqury the rules under which the Tribunal Is acting, the subject matter that is being dealt with and so forth.
In that case, the student was caught red-handed by the Invigilator while copying. An enquiry was held against him in which the Invigilat or was not examined. The learned Judge of the Madras High Court observed that principles of natural justice are not violated. Rigid and mechanical insistence on full fledge enquiry is not conducive or effecting functioning of educational institutions.
13. A similar view has been expressed by a learned single Judge of this court in Indra Mathi v. Board of Secondary Education , where in it has been observe:
The High Court does not sit in appeal over decisions of educational bodies and its jurisdiction is limited. An enquiry before a domestic Tribunal should not be equate with trial in a court of law. Yet such an enquiry in disciplinary action matters is quasi judicial and must obey principles of natural justice. The extent of applicability of these principles Is to be decided on whether their compliance is necessary for a just decision on the facts of the case. The aim of these principles is to secure justice or prevent miscarriage of justice. For their proper compliance, the delinquent should be apprised of the charges and should be given an opportunity to explain the circumstance appearing against him in the materials to be used in arriving at a decision. It cannot be said that it is not necessary to disclose all materials to be used. When the results committee had used the examiner's and an expert's reports but these were not shown to the examinees and he was also not given a chance to offer his explanation it is clear that principles of natural justice has been violated. It is the responsibility of the examining authority (Board of Secondary Education) to apprise the examinees of the charge and disclose the materials to be used.
In Board of High School's case (supra), on account of mask copying, the examination of particular centre was cancelled without giving an opportunity of hearing to the candidates concerned and therefore, the Allahabad High Court hold that this is against the principles of natural justice because the principles of audi alterm partem has not been followed. However, their lordships of the Supreme Court were of the view that the Examination Committee can prescribe its own procedure as long as the principles of natural justice are followes and adequate opportunity of presenting his case is given to the examinee. Their lordships of the Supra me Court further observed:
That if it is not a question of charging any one individually with unfair means but to condemn the examination as ineffective for the purpose it was held must the Board given an opportunity to all the candidates to represent their cases? We think not. It was not necessary for the Board to give an opportunity to the candidates. If the examination as a whole were being cancelled. The Board had not charged anyone with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In the circumstances, it would be wrong to insist that the Board must hold a detailed inquiry in the matter and examine each individual case to satisfy itself which of the candidate had not adopted unfair means. The examination as a whole had to go.
Thus, in spite of the fact that principles of natural justice are to be followed by the domestic Tribunals holding enquiries but an cautioned in Bright Son Jose's case (supra), rigid and mechanical in sentence on full fledged enquiry is not conducive for effecting functioning of educational institutions. In Chazanfar Rashid v. Board H.S.& I.Edn, U.P. 's case : AIR1979All209 , the Allahabad High Court has observed that the examination committee has jurisdiction to take decision in the matter of use unfair means not only on direct evidence but on probabilities and circumstantial evidence and there is no scope for importing the principles of criminal trial while considering the probative value of the probabilities and circumstantial evidence. The quasi-judicial authorities including the Examinations Committee are not bound technical rules of evidence and procedure as are applicable to courts.
14. It was contended by Mr. H.M. Parekh the learned Counsel appearing for the respondents that when a person accepts the essential ingredients of the offence, with which he is charged with, the criminal court is not required to take any further evidence to hold him guilty of the said offence and even on the basis of the admission, the civil court grant decrees and therefore the admission is a substantial piece of evidence and on such a substantial piece of evidence, no further evidence is necessary to decide that case. In support of this submission, Mr. Parekh has placed reliance an a decision of their lordships of the Supreme Court in Krishna Pil Lal v. State of Madras : AIR1954SC335 , wherein it has been held that conviction can be placed on the plea of guilty only when it is voluntary. He further placed reliance on a decision of their lordships of the Supreme Court in Narayan v. Gopal : [1960]1SCR773 where in the Supreme Court observed that in admission is the best evidence that an opposing party can rely upon and through not conclusive is decisive of matter, unless successfully with drawn of proved erroneous.
15. In Rawji Dayawala & Sons (P) Ltd. v. Invest Import : [1981]1SCR899 , it has been held that admission, unless explained furnished the best evidence. Their lordships of the Supreme Court in Thiru John v. the Returning Officer : [1977]3SCR538 have observed that it is well settled that a party's admission as provided in Section 17 to 20, fulfilling the requirements of Section 21, Evidence Act is substantive evidence as propric vigere and an admission if clearly and unequivocally made, is the best evidence again set the party making it and though not conclusive shifts the onus on the maker on the principle that what a party himself admits to-be true may reasonably be presumed to be so and until the presumption is rebutted, the fact admitted must be taken to be established. Mr. Parekh has submitted that in Mahendra v. Shushila : [1964]7SCR267 , their lordships of the Supreme Court have held that the Court can base its decision on the admission of the parties. He further submitted that even in Union of India v. Mohan Builders & Financiers : [1977]1SCR967 , the Supreme Court observed:
An admission by a party Is substantive evidence of the fact admitted and admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statement in case it made a statement contrary to those admission.
Thus, it is clear that an admission by itself is a substantive piece of evidence even without confronting or notifying to its maker. This disposes of the objection of the petitioners that it was not notifies to them that their admission will be used against them.
16. In Channabasappa Basappa Happali v. State of Mysore : [1971]2SCR645 , in an departmental enquiry, the police constable remained absent without leave and went on fast against action of authorities. A charge sheet was serving and the petitioner admitted the relevant facts but denied that he was guilty. He did not cross-examine any witness or lead evidence on his behalf. He was dismissed from service. The High Court upheld the order of dismissal from service. However, on appeal the Supreme Court held that since the appellant admitted all the relevant facts on which the decision could be given against him and therefore, it cannot be stated that the enquiry was in breach of any principle of justice. The appellant took upon himself the decision as to whether leave could be extended or not and acted upon it. The enquiry officer had to go by the reason given before him. On the whole, therefore, the admission one of the guilty in safaris the facts on which the enquiry was held. It was a departmental enquiry on facts of which due notice was given to him. There is no distinction between admission of facts and admission of guilt.
17. On the other hand Mr. M. Mridul, the learned Counsel appearing for the petitioners has drawn my attention to a decision of their lordships of the Supreme Court in Pullangoda Rubber Produce Co. v. State of Kerala : [1973]9ITR18(SC) . Where in the assessed claimed that the books did not disclose the correct state of facts. It was held that the assessed should be given opportunity to establish his assertion. Though entries in books of accounts amount to an admission the same is not conclusive and is rebut table. Mr. H.M. Parekh, the learned Counsel appearing for the respondents No. 2 to 4 has however submitted that admission is a substantive piece of evidence and it can be utilized against its take without drawing his attention to that admission of the facts made by him and unless he rebuts that admission or successfully withdraws it even a conviction can be based on it and he can certainly be punished for his guilt on the basis of such an admission.
18. In the light of the aforesaid Laid down by their lordships of the Supreme Court, now I propose to examine the admissions made by the petitioners, whice are as follows:
(1) S.B.C.W.No.2369 of 1989: Subendu Dixit's case:
Sir, During preparation of this subject, I made some notes on the admission card. Admission Card along with Answer Book is submitted herby. Subendu Dixit.
(2) S.B.C.W.No. 2370 of 1989: Shashank Manohar's case:
Sir, During preparation of the subject, I noted some points on the admission card. The answer book along with admission card is submitted her with. Shashank Manohar
(3) S.B.C.W. No 2542 of 1989: Vinod Kumar's case:
Sir, during preparation of the subject, I made some points on my adm. card. The notebook along with adm. card Is submitted. Vinod Kumar.
(4) S.B.C.W. No. 2675 of 1989: Suresh Kumar's case:
Sir, during preparation of this subject, I have written some points with pen. The answer book is submitted along with adm. card. Suresh Kumar.
(5) S.B.C.W. No. 2676 of 1989: Shree Ram's case:
Sir, by mistake the fat % were left written on the admission card by preparing question at home for exam. There is no question, which related to fat % in the present question paper. Shree Ram.
(6) S.B.C.W. No 3521 of 1989: Sanjay Kumar's case:
Sir, during preparation of the subject, I have written some points on admission card. Answer book along with admission card is submitted herewith. San/ay kumar.
All these admissions were forwarded with the report of the Invigilator in these terms that the statement of the students have been recorded and the answer book along with the admission card is attached here with for necessary action.
19. Mr. M. Mridul, the learned Counsel appearing for the petitioners has submitted that it is not the case of the respondents that the alleged material has been used by the petitioners while giving answer to the paper of Dairy Science for enhancing their performances. The only allegation against the petitioners is that the material relating to the subject of Dairy Science was found written on the admission card It was contended by Mr. M. Mridul, the learned Counsel appearing for the petitioners that according to the Instructions to Superintendent of Examination Centre issued by Sukhadia University, Udaipur, unfair means stands classified at pages 4 & 5 of these instructions. The University has found the petitioner guilty of using unfair means on the basis of clause 1(11 l)(a), Which provides that having in possession during examination time, any paper, books or notes which have relevance to the examination concerned. Clause l(III)(b) further provides that anything written on the ink pot cover, scale or any other instrument or on any kind of furniture with which has concerned which may have relevance to the examination concerned. It is not the case of the respondents that the petitioners were found in possession of any loose papers or loose sheets, on which the relevant material found written. The case of the respondent -University is that objectionable material was found written on the admission card itself. It is nobody's case that the admission card of any candidate was in possession of any body else. Mr. Mridul has submitted that clause 2(iii) provides that as soon as the candidate is suspected found or reported to have use unfair means, his/her answer books shall be seized along with the material recovered and a fresh answer book given to him/her to answer remaining questions of the question paper Both the answer books (marked as I and II) will be sent by Centre Superintendent to the Controller of Examination of the University by name together with the material recovered and duly signed by the candidate. The invigilator and the Centre Superintendent.
Clause 2(iv) further provides that the Invigilator shall give his/ her report in writing in the form prescribed by the University. The Invigilator's report shall be immediately brought to the notice of the candidate who shall be required to give his/her explanation in the above form. In this respect, Mr. Mridul has submitted that it is well settled that where the power is required to be exercised by certain authorities in certain way, it should be exercised in that manner and not otherwise and all other modes of performance are necessary forbidden. It is all the more necessary to observe this rule where the power is of a drastic nature and it is exercised in the mode other than one provided in violation of fundamental principles of natural justice. The Invigilator had only to report as to how, he found the candidates in possession of objectionable material, whether it was in his pocket; whether it was on his table or whether it was found in his answer book. Admittedly, in this case the objectionable material was found written on the admission card itself and, therefore, there was no necessity to make any report by the Invigilator because the candidate is expected to retain his admission card with himself in the examination Hall. It is nobody's case that it has been given to anyone else and thus, the observance of this rule does not confer any drastic power in the Invigilator and, therefore, its non-observance does not violate the principles of natural justice. It is the normal rule of conduct that a candidate-possess his own admission card and if anything objectionable is found written on the admission card, it prima facie establishes that it has been written on it by that candidate himself because-that admission card is possessed by him and by no body else and, therefore, if the Invigilator has not made the proper report about taking statement of the candidate, it is not volatile of any principles of natural justice. It is true that when the Invigilator found that something has been written on the admission card, he asked the petitioners to explain and all the petitioners give their explanation in writing. The contention of Mr. Mridul is that the statement of the petitioners are stereo typed and it appears that these statements have been dictated by the Invigilator and the candidates were obliged to write them. I have quoted these admissions adiabatic above and a perusal of these admission show that all of them are not stereotyped. Different petitions have used different phraseology. Some of them have only stated that while preparing the subject, they made certain notes on their admission cards whereas some other have stated that while preparing for this subject, they noted some points on their admission cards whereas one of them has stated that he noted the fat contents of different species of Milk on his admission card. Bringing of such admission cards to the examination hall on which something relating to the subject to which the paper relates, is certainly an unfair practice which is prohibited under the rules. An examinee is expected to bring his admission card to the examination hall but he cannot bring them there with any incriminating or objectionable material written over the admission card because that amounts to use of unfair means.
20. In Vinod Kumar's case (S.B.C.W.No.2542 of 1989, it has been reported by the Head Examiner as also in the notice Annex's issued by the Controller of Examinations that the matter written in pencil has been rubbed off using an eraser. The Invigilator has reported that the matter written in admission card has been rubbed off using an eraser than it was his duty to further explain when it has been rubbed off i.e. whether it has been erased in his presence or in the examination Hall. When it has been rubbed off in the examination Hall or in the presence of the Invigilator, it does not constitute the use of unfair means. Even the Head Examiner himself has reported that at what stage it has been rubbed off needs to be gone into. It is not the use of the respondents that the matter written on the admission card was rubbed off by the examinee in the presence of the Invigilator or in the examination Hall. Thus, when no evidence has been led to prove that petitioner Vinod Kumar brought the admission card, on which some material was written which was rubbed off in the presence of the Invigilator or in the Examination Hall and Le had an opportunity to use it during the examinations. I am firmly of the view that his alleged admission is not sufficient to hold him guilty of using unfair means in the examination, and the learned Examination Committee misdirected itself in holding him guilty of using unfair means. The Examination Committee was cautioned by the Head Examiner as also by the Controller of Examination that this matter needs to be looking into that at what stage the matter written on the admission card was erased by the petitioner Vinod Kumar. To prove this fact, no evidence has been led on behalf of the department and the burden of proving this fact lies on the Department. In this respect, reliance can be placed on a decision of this Court in Amritlal v. State 1981 WLN (UC) 457,where in it has been observed that it is well settled that burden of proof in the case of departmental enquiry is on the department. Mere filing of any documents does not amount to proof of them and unless these are either admitted by the other side or proved, they do not become evidence in the case. In the case on hand, the petitioner Vinod Kumar has no where stated that he erased some thing written on the admission card in the examination Hall and, therefore, unless it is proved that something written on the admission card was erased in the examination Hall, the examinee Vinod Kumar cannot be held guilty of using unfair means in the examinations.
21. So faras the admission made by the petitioners other than petitioner Vinod Kumar are concerned, they are very categorical in nature. They have admitted that while preparation of the/this subject, they have made theses notes. Thus, it has to be presumed that something written on the admission cards had relevance to the paper of the subject concerned and it was for them to have rebutted their admissions.
22. Show cause notices were issued to these petitioners in which it had been recorded that statements of the students have been recorded and the answer books along with admission cards are attached for necessary action. Thus, it was informed to the petitioners that their statements have been recorded and they are sought to be used against them and an opportunity was given to them to show cause within 15 days in writing from the date of the letter as to why the proposed punishment of cancellation of examination be not resorted to or may not be confirmed. In reply to these notices, petitioners Subendu Dixit and Shashank Manohar have filed copies of their replies, which have been marked as Annexs.2 in their respective writ petitions. In his reply, petitioner Subendu Dixit has stated that his pencil scribbling on the admission card had nothing to do with any of his examination papers. They were jotted down innocently and without any mala fide intention on his part. Thus it is clear that his reply contains a specific admission that pencil scribbling were made by him on his admission card although he has denied that they had anything, to do with any of his examination papers. The notings on the admission card relating to the subject may not have any relevance to the question papers but when the notings are made the examinee can only guess as to what type of questions may appear in the examination paper and he makes the notings of same points as regards that subject on the basis of his guess. It is not necessary that his guess may come out to be true but if those notings have any relevance to the subject in which he appears than that amounts to the use of unfair means. I am unable to agree with the submission made by the leaden counsel for the petitioners that these scribblings had no relevance to any questions that have appeared in the paper of Dairy Science. If the noings have relevance to the subject of the paper in which the candidate appears that is enough to establish the allegation of use of unfair means against such a candidate. In some of these cases, the Examiner himself has reported that no part of the question related to the fat % of different animals and, therefore, the examinees could not have enhanced their performance by making by use of these notings but that is no reason to hold the petitioners guilty of suing un faire means. That of course may be relevant ground in relation to the imposition of penalty which may be imposed aganist a candidate but cannot be pressed into service to sat that it does not amount to use of unfair mean.
23. The petitioner Subendu Dixit has categorically admitted that he has made these scrubbings written on his admission card while preparing this subject and there fore simply because it has no relevance to the paper concerned, it does not mean that he has rebutted the presumption which has been raised against him.
24. Likewise, petitioner Shashank Manohar has also admitted that he made certain notings on his admission card. According to the Examiner, they may be code words but he has stated that they were actually the estimated marks which he was likely lo receive in his earlier papers. This is totally against his admission wherein he has stated that while preparing that subject, he has made these notings. Thus, he has not tried to explain his admission. Rather, he has tried to wriggle out his admission and that is only an after though plea that these nothing relate to his guess marks which is expected to obtain in his earlier papers. If that be so, he would not have admitted that he made these notings while making preparation of the subject. The subject of Dairy Science has no relevance to the subject of Anatomy and therefore, he has not been able to rebut the presumption which has been raised against him.
25. So far as the petitioners Suresh Kumar, Shree Ram and Sanjay Kumar are concerned, they have not filed copies of their replies to the Show cause notices along with their wirt petitions but the extracts of their replies have been given in Annex. Rule /5. A perusal of Annex. Rule /5. shows that petitioners Suresh Kumar, Shreeram and Sanjay Kumar have not denied that they have not made these scrubbings or have not written these notings on their admission cards. The scrubbings made by them on their admission cards coupled with the admission made in their statement clearly go to show that they have relevance to the subject of Dairy Science and, therefore, it is futile to contend that these scrubbings had no connection with the subject concerned. The admission is the best proof of the fact admitted and unless it is rebutted by the candidate it can be used against the candidate and, therefore, the learned Examination Committee was right in holding the petitioners other than petitioner Vinod Kumar guilty of using unfair means in the paper of Dairy Science.
26. It was next contended by Mr. M. Mridul the learned Counsel appearing for the petitioners that the order dated 25th May 89 of the Un fair means Committee is not a speaking order. In this respect, certain authorities have been cited. I have gone through the detailed commands of the un fair means Committee hold on 25th May 89 and I am firmly of the view that this Committee has given definite reasons for not accepting explanations furnished by the petitioners and, therefore, it cannot be said that the order passed by the learned Un fair means Committee when it is read with the reasons assigned for it, is not a speaking order. The educational institutions are not expected to write detailed judgments point wise like Criminal and Civil Courts. What is to be seen is that their exercise of power is not actuated by mala fides or by bias. There is no such allegation in this case. It is true that Public Officers are presumed to act fairly and the administrative actions should be exercised reasonably and fairly and not bitrarily and in a discriminatory manner. There is no allegation of discrimination and in the facts and circumstances of this case, it cannot be said that the result committee has exercised its powers arbitrarily
27. Mr. H.M. Parekh, the learned Counsel appearing for the respondents has submitted that the decision of such academic council should not be lightly interfered with because they are the best persons to judge as to what constitute unfair means and whether the particular examinee has used them or not. What is expected to them is to act fairly and reasonable, about which as stated above, a presumption exists and their decisions should not be lightly interferred. In this respect, he has placed reliance on a decision of the Madhya Pradesh High Court in Mohd. Yakub Ansari v. Devi Ahilya Vishwa vidayalaya : AIR1987MP5 , wherein it has been observed:
If there was sufficient material before the Committee on the basis of which the Committee imposed the penalty, which it had power to impose, then the appreciation of the material on record by the Committee has to be respected. Once it is found that the Committee was not biased and had acted fairly, the High Court has no power under Article 226 of the Constitution, to interfere with the decision of the Committee.
My attention was also drawn to a decision of their lordships of the Supreme Court in Principal Patna College v. K.S. Raman : [1966]1SCR974 , wherein the Supreme Court observed:
Where the question involved is one of interpreting a Regulation framed by the Academic council of a University, the High Court should ordinarily be reloctent to issue a writ of certiorari where it is plain that the Regulation in question is capable of two constructions and it would generally not be expedient for the High Court to reverse a decision of the educational authorities on the ground that the construction placed by such authorities on the relevant regulations appears to the High Court less reasonable then the alternative construction which it is pleased to accept.
Patna College's case (supra) has little application to the facts and circumstances of this case. My attention was also drawn to the decision in Prem Prakash v. Punjab University : AIR1972SC1408 and University of My sorev.v. Govind Rao AIR 1965 SC 491, wherein it has been observed that normally the Courts should be slow to interfere with the opinions expressed by the experts and if there is no allegation about mala fides against the experts who constituted the Board, it would normally be wise and safe for the Court to leave the decisions of academic matters to experts who are more familiar with the problems. Actually the orders passed by such academic authorities should not be judged on the touchstones of technicalities. One must look to the substances of the conclusion and if it reasonably withstand the test of fair scrutiny and is not actuated by male fides or is not Germans to bias then such an order passed by such authorities cannot be lightly interfered with on mere technical grounds.
28. It was next contended by M.Mridul, the learned Counsel appearing for the petitioners that notice Annex's has been issued by the Controller of examinations of the Mohan Lal Sukhadiya University, Udaipur and the decision of cancellation of examination has been taken by the Examination Committee of the Rajasthan Agriculture University. Thus, the person who issued notices is a different person than one who has taken the decision and, therefore, punishment imposed against the petitioners is vitiated on that account. In support of his submission, Mr. Mridul has placed reliance on decision of their lordship of the Supreme Court in Marathwada University v. Seshrao Bal want Chavan 1989(3) SCC 132 wherein it has been observed that it is a settled principles of law that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by other unless it is delegated. In that case, it was further observed that on delegation of power by the Executive Council of the University to the Vice Chancellor, the approval of the v. Chancellor to the delegation is mandatory Under Section 24(1)(xii) read with Section 34 of the Marathwada University Act and, therefore, the resolution of the executive council delegating such powers was not in compliance with the mandatory requirement of that Act and it could not confer power on the Vice Chancellor to take disciplinary action against any officer. Their lordships also observed that power to take disciplinary action against an officer delegated by executive council to Vice Chancellor is in contravention of the statutory provisions and therefore, the action taken by the Vice Chancellor against the Officer which was later ratified by executive council is void abilities. Void Act of delegate cannot be cured by ratification of the delegant and the ratification cannot cure an ultra vires action. Mr. Mirdul, the learned Counsel appearing for the petitioners has submitted that in this case, according to the provisions of the Raj. Agriculture University Act and the Statues framed there under, the power to hold examinations vests in the academic council and, therefore, the Vice Chancellor could not have delegated those powers, regarding holding of examinations, to Mohan Lal Sukhadiya University. Mr. H.M. Parekh, the learned Counsel appearing for respondents No. 2 to 4 has argued that this new University by the name of Raj. Agriculture University is an off shoot of Mohan Lal Sukhadiya University created on bifurcation of Mohan Lal Sukhadiya University into two universities one retaining its own identity as Mohan Lal Sukhadiya University and the other being given the name of Rajasthan Agriculture University. Being a new institution, its regulations could not be framed in time. According to him, as the bifurcation of the two Universities viz. Mohan Lal Sukhadia University and the Raj. Agriculture University was only is an early stage of partition and has not been fully finalized and the examinations were to be held in time and therefore, in such emergent circumstances, vide letter Annex.R.7 the Vice Chancellor of the Raj. Agriculture University requested the Vice Chancellor of Mohan Lal Sukhadiya University to instruct Shri I.S. Bhandari, Controller of Examinations to go ahead and make necessary preparations for conducting annual examinations of the Raj. Agriculture University for the academic year 1987-88. This letter which was received by the Vice Chancellor of Mohan Lal Sukhadiya University was placed in the meeting of the Board of Management of Sukhadiya University for consideration and it decided in its meeting held on 6th October 1987 that examinations of the Rajasthan Agriculture University be conducted by Mohan Lal Sukhadiya University on the same terms as has been done in the past in the case of Rajasthan University. Mr. Parekh has submitted that in pursuance of the above decision of Mohan Lal Sukhadiya University, Shri I.S.Bhandari Controller of Examinations of Mohan Lal Sukhadiya University acted as a representative of the Raj. Agriculture University for conducting the examinations and as the examinations were conducted by him in his capacity as Controller of Examinations of Mohal Lal Sukhadiya University as a delegate of the Raj.Agriculture University and as the use of unfair means was made in those examinations, he gave a notice to the petitioners on behalf of the Rajasthan Agriculture University. According to Mr. Parekh, the show cause notice was given on behalf of the examination committee of the Rajasthan Agriculture University. He' has further submitted that the reply furnished by the petitioners, the reports of the invigilator and Head Examiners as also the admissions of the petitioners were considered by the examination committee of the Rajasthan Agriculture University and a final decision was also taken by that committee. It may be made clear that Rajasthan Agriculture University has adopted all statutes of the Mohan Lal Sukhadiya University until then Statutes for Rajasthan Agriculture University have nor framed and finalized this was done vide Resolution of the Board of Management of Rajasthan Agriculture University dated 20th May 1989. Thus, when the examinations were conducted, the statutes of the Rajasthan Agriculture University were not in existence. Now let us see whether the Vice Chancellor of the Rajasthan Agriculture University has acted beyond the scope of his powers.
29. Section 2 of the Rajasthan Agriculture University Article 198 relates to the definitions. S.2(1) defines 'Regulations' as follows:
Regulations' means the regulations and procedures made for the operation and functioning of the Authorities specified in Section 10 and includes the provisions made by the Academic council for the establishment or maintenance of the academic standards of the University and the provisions for the conduct of the staff and students.
Section 2 (r) defines 'statutes' as follows
Statutes mean the statutes of the University governing the matters of policy and procedure in the University as contained in the Schedule and as amended from time to time.
Thus, neither the regulations nor the statutes were in existence on 12.11.1987 only the Rajasthan Agriculture University Act was in force. S.7 of the Rajasthan Agriculture University Article provides for powers and functions of the University. The relevant portion of the S.7 of the Article is as follows:
Section 7 Powers and functions of the University
(1) The University shall exercise the powers and perform the functions as under:
(s) To conduct courses of study and to hold examinations and tests;' (n) to enforce and maintain discipline among the teachers, students, officers and staff and to make necessary arrangements in order to promote their welfare and to improve their service conditions; and'
Section 10 relate to the authorities. It lays down that the Board of Management, Academic Council, Board of Studies for each Faculty and Postgraduate studies and such other body as may be declared by the Statutes to be the Authority of the University shall be the authorities of the University. Section 18 lays down that the Vice-Chancellor, Pro-Vice Chancellor Registrar Comptroller all Directors, all Deans, Librarians and any other person declared by the Statutes to be the Officer of the University shall be the Officers of the University. Section 19 deals with powers of the Vice Chancellors. Section 19(3) reads as under:
Section 19(3)-The vice Chancellor shall be the Principal academic and executive Officer of the University and shall exercise overall supervision and control over the affairs of the University. He shall have all such powers as may he necessary for true observance of the provisions of this Act and the Statutes.
As stated above, on 12.11.1987,the Statutes of the respondent University were not framed. Rather the Statutes of Mohan Lal Sukhadiya University were adopted vide Resolution dated 20th May 1988. The request for conducting the examinations was made to the Sukhadiya University on 12.11.1987 i.e. much prior to the statutes came into force. Section 19 (4) provides that the Vice Chancellor shall make an order so as to exercise any power or perform any function, which is exercised or performed by any Authority under this Act or the Statutes. It is true that holding of the examination is an emergent circumstance. It has to be held as per Scheduled and within time. Thus when, the process of bifurcation of two University viz., Sukhadiya University and Rajasthan Agriculture University was not complete to final and even the Statutes and Regulations under the Act of the University were not framed, the Vice Chancellor thought it fit in his wisdom to request the Vice Chancellor of Mohan Lal Sukhadiya University to entrust holding of the examinations to the Controller of Examinations, Sukhadiya University as it was the parent University of the Rajasthan Agriculture University. Section 12, of the Act provides that there shall be an academic Council of the University, which shall be in charge of the academic affairs of the University and shall, subject to the provisions of this Act and the Statues supervise, control and regulate the standards of instructions and examination in the University and all matters connected with education, training and research. In this case, it is not known whether the academic council was in existence at the time when the latter dated 12.11.1987 was written to the Sukhadiya University for conducting the examinations. When the Statutes were not in force, it is now where provided in the Act that the Academic Council can delegates its certain power to the Vice Chancellor as regards the conduct of examinations. Rather, Section 19 (3) and (4) authorized the Vice Chancellor himself to exercise all powers necessary for the observance of the provisions of this Act and to take immediate action, which is called for. Thus it is not a case where any power has been exercised by the Vice Chancellor with which he was not invested. It is now where provided in the Article that academic Council should delegates such power's to the Vice Chancellor for the conduct of the examinations and actually, the academic Council has not delegated these powers to the Vice Chancellor as regards the conduct of the Examination. The Vice Chancellor himself possessed these overriding powers under the Act, and, therefore, this contention of the learned Counsel appearing for the petitioners that the person who issued notices is a different person then one who has taken the decision in the matter has no legs to stand. Actually, Shri I.S.Bhandari has acted as a representative of the respondent University for holding the examinations and t he examination committee of the respondent University had taken the decision in the matter and, therefore, this technical objection raised by learned Counsel for the petitioners has no legs to stand and cannot be sustained.
30. It was lastly argued by Mr. M. Mridul, the learned Counsel appearing for the petitioners that a perusal of the detailed comments of the un fair means committee held on 25.5.1989 show that the petitioners have been punished for the use of unfair means as well as indiscipline whereas there was no charge of indiscipline. Actually, the use of unfair means itself is an act of indiscipline. Be that as it may, this fact will be examined as to whether the punishments meted out to the petitioners are such that they could have been awarded to them on the solitary ground of the use of unfair means. It does not matter if they have been punished for the use of unfair means and indiscipline. More over that will only affect the quantum of punishment. I will deal with that point hereinafter.
31. In Central Bank of India v. Karunamoy : (1967)IILLJ739SC , their lordships of the Supreme Court have held that the domestic enquiry cannot be amounted with the enquiry held under Article 311 of the Constitution. It was further observed as follows
The rule of natural justice will have to be observed, in the conduct of domestic enquiry against a workman. If the allegations are denied by the workman, the burden of proving the truth of those allegation will be on the management and the witnesses called, by the management must be allowed to be cross-examined, by the work-man, and the latter must also be given an opportunity to examine himself and adduce any other evidence that he might choose, in support of his plea. But if the workman admits his guilt, to insist upon the management to let in evidence about the allegations will only be an empty formality. In such a case, it will be open to the management to examine the workman himself, even in the first instance, so as to enable him to offer any explanation for his conduct, or to place before the management any circumstances which will go to mitigate the gravity of the offence.
Thus, when the guilt has been admitted by the petitioners thus they have maps these notings on their admission cards during preparations of the subject then no further evidence was necessary to establish the guilt against them. However one thing has to be borne in mind that in the paper of the Dairy Science, no question relating to the fat contents of the milk of any of the species of animals was there and, therefore the petitioners could not have enhanced their performance at the examinations by the use of alleged unfair means. They have only been found in possession of the material relating to the subject of Dairy Science but they could not have used that material while attempting the paper of Dairy Science as no question relating to the fat contents of any of the special of the animals was there. Thus, for such a lapse the punishment of cancellation of current examinations of the year 1988 imposed on the petitioners appears to be excessive. In such matter, it will suffice if the petitioners (other than the petitioner Vinod Kumar) are asked to re-appear in the examination of the paper of Dairy Science of t he second year of B VSC and Animal Husbandary Degree Course and thus, only their examination of that paper i.e. Dairy Science deserves to be cancelled in the facts and circumstances of this case. It will be relevant here to mention that maintaining the punishment of cancellation of current examination will result in double jeopardy because now the petitioners have been allowed under the orders of this Court to continue their studies in the third year course of BVSC and Animal Husbandary Degree Course and they have not been allowed to appear in the third year examination of that course. If their second year examinations are cancelled than they will not only losses the year 1987-88 but I hey will also loose the year 1988-89 and they will have to re-appear in the second year examination in the year 1989-90 because the examinations of second year have now taken place. Thus, in this manner, the petitioners will have to losses three years in prosecuting their further studies and, therefore, the punishment of cancellation of current examinations of the year 1988 appears to be too harsh. In this respect reliance is placed on a decision of their lordships of the Supreme Court in Ajay Singh v. The Board of Technical Education and another 1988(I) RLR 196. In that case the petitioner was found in possession of material, which was treated as use of unfair means at the examination. His whole examination of 2nd Semester was cancelled and he was debarred from appearing in ensuing examination and he was further restrained to study in any institution on the basis of a charge of having used unfair means in examination of social science. There was no evidence of alleged piece of paper having been made use of by the petitioner. There was also no avidence to the effect that it could be used for solving questions of social science paper. In these facts, the punishment awarded to the petitioner was held to be unwarranted and the punishment order was quashed by substituting it with an order of punishing the petitioner with cancellation of examination in social science paper.
32. On the other hand, Mr. H.M.Parekh, the learned Counsel appearing for the respondents has drawn my attention to a decision of this Court in Manjulata v. Hitkari Co-Op, Shiksha M. Mahavidylaya 1987(II)RLR 84, where the petitioner was not eligible for admission in B.Ed. course but was given admission by college and studied regularly. She was disqualified free appearing in the examination by the University. She appeared in examination under the orders of the Court. It was held that appearance of the petitioner in examinations under the orders of the Court will not confer any right on the petitioner. Mr. Parekh has, therefore, submitted that simply because the petitioners have been allowed to continue their studies under the orders of this Court in the third year of BVSC and Animal Husbandary Degree Course, that will not confer any right on the petitioners. There is no quarrel about this principle but the facts of this case are different form Ajay Singh's case (supra). That was a case of ineligible candidate being given admission in B.Ed, course but here is a case of eligible candidate as where examinations have been ordered to be cancelled only on account of the fact that some scrabbling were found written on their admission cards when they were appearing in the examination of the paper of Dairy Science of Second Year BVSC, and Animal Husbandary Degree Course. I have already held that the punishment imposes on the petitioners other than petitioner Vinod Kumar appears to be excessive and very harsh. Thus, Manjulata's case (supra) has no application to the facts of this case.
33. As regard the argument of Mr. Mridul that the petitioners have been punished for the use of unfair means and indiscipline although, there was no charge of indiscipline is concerned, I may place reliance on a decision of their lordships of the Supreme Court in Pyaralal Sliamia v. Managing Director, J& Industries Ltd., : (1990)ILLJ32SC , wherein it has been held that even if the punishment is based on two grounds and if it can be sustained even on one ground than too, it can be maintained.
34. In the result, S.B. Civil Writ Petition No. 2542 of 1989 filed by petitioner Vinod Kumar is allowed and the punishment of cancellation of current examinations of the year 1988 imposed against him vide order-dated 3rd/7th July 1989 passed by the Controller of Examinations, Rajasthan Agriculture University, Bikaner is quashed. The respondents are directed to declare the result of his second year BVSC and Animal Husbandary Degree Course forth with and if he gets success in the examination, then the result of his third year BVSC and Animal Husbandary Degree Course be also declared as and when due.
35. So far as the Writ Petitions No. 2359, 2370, 2675, 2676 and 3521 of 1989 filed by petitioners Subendu Dixit, Shasnank Manohar, Suresh Kumar, Killdeer Shreeram and Sanjay Kumar respectively are concerned, they are allowed in part and the punishment of cancellation of current examination of second year BVSC and Animal Husbandary Degree Course of 1988 imposed against them vide order dated 3rd/7th July 1989 passed by the Controller of Examination, Rajasthan Agriculture University, Bikaner is modified and instead of cancellation of their current examinations of the year 1988, their examination of the paper of Dairy Science of the Second year BVSc and Animal Husbandary Degree Course is cancelled. The respondents are directed to allowed thus to take up the examination in the paper of Dairy Science of second year BVSc and Animal Husbandary Course afresh within four months from today and, thereafter, their result of second year BVSc and Animal Husbandary Degree Course be declared and if they clear the second year BVSc and Animal Husbandary Degree Course, their results of third year BVSc and Animal Husbandary Degree Course be also declared. However, if any of these petitioners failed in the second year examinations that he should be allowed to take supplementary examinations as per rules. If the rules do not permit them to appear in the supplementary examinations then such petitioners should be allowed to prosecute their studies in the second year BVSc and Animal Husbandary Degree Course. However, those petitioners who clear second year BVSc and Animal Husbandary Examination after taking the re-examination in the paper of Dairy Science and clear that entire examination of second year and further succeed in the third year BVSc and Animal Husbandary degree course examination in which they have been allowed to appear under the orders of this Court then they will be entitled to be admitted in the fourth year of the BVSc and Animal Husbandary degree course according to Rules of the University.
36. However, in the facts and circumstances of this case, the parties are left to be their own costs of those writ petitions.