| SooperKanoon Citation | sooperkanoon.com/451595 |
| Subject | Constitution |
| Court | Allahabad High Court |
| Decided On | Oct-10-1996 |
| Case Number | C.M.W.P. No. 8527 of 1996 |
| Judge | D.K. Seth, J. |
| Reported in | AIR1997All232 |
| Acts | Uttar Pradesh State Universities Act, 1973 - Sections 29(1); Constitution of India - Article 226; Kashi Vidyapeeth First Ordinance - Ordn. 3(2) |
| Appellant | Manish Sarin |
| Respondent | Mahatma Gandhi Kashi Vidyapeeth, Varanasi and Others |
| Advocates: | Anand Kumar Gupta, Adv. |
1. The petitioner's result of M. A. (I) examination was cancelled by on order dated 8-11 -1995, by reason where of the petitioner was not allowed admission in the second year class. By means of present writ petition the petitioner has challenged the inaction on the part of respondents to admit him in the second year class despite the fact that the petitioner, was asked to come for admission in the second year examination (Annexure-5 to the petition) for which the petitioner had served a notice on 27-2-1996. In the writ petition the petitioner has alleged that there was no reason for non-declaration of his result and that he had never used any foreign material in the examination nor he was confronted with the alleged chit. It is also alleged that he was not given any opportunity before the decision was taken. The petitioner, however, admitted that a notice was served on the petitioner (Annexure 3 to the petition) alleging that he had used some chit in the examination. By the said notice the petitioner was asked to submit his reply. The petitioner submitted his reply on 17-8-1995 (Annexure 4 to the writ petition). According to the petitioner he was never called for in the inquiry or to submit any explanation. On the contrary he received a notice on 24-10-1995 requiring him to come for admission as indicated above. But ultimately when he went for admission on 6-11-1995 the petitioner was told that his result was not ready. When he was not admitted, he issued the said notice dated 27-2-1996.
2. In the counter-affidavit the respondents had alleged that the petitioner was found copying from the hand-written chit which contained material concerning the particular paper and the said 'chit' was recovered from his possession after being caught red-handed while copying from the hand-written chit. The head of the department also submitted a report. After considering the said report and reply of the petitioner the sub-committee in its meeting dated 8-11-1995 decided to cancer the whole examination of the petitionerand accordingly the petitioner's examination of M.A. (I) year in 1995 in the subject of Industrial Relations and Management and Social work was cancelled by the University. The petitioner was aware of the actions taken against him by the Examination Committee on 8-11-1995. Chapter 10 of the 1st Statute of the University as amended on 28-5-1993 provides in para 3(2) (ka) the action to be taken upon the students being found in possession of unauthorised material.
3. In the rejoinder-affidavit the petitioner has stated that he had never copied and it was not known to him in respect of what topic and subject the chit was concerned. He was never confronted with its contents. He was nevercaught red-handed. The report was never shown to him. The decision of the Committee was never communicated to him. He was not aware of the said order.
4. In the supplementary counter-affidavit it has been contented that the chit was recovered from the petitioner which contains material concerning Question No. '7' and question No. '4'. The decision of the Committee dated 8-11-1995 was posted on the notice board on 9-11-1995. The proceeding of the Examination Committee was widely circulated in all the departments. The notice was also sent to the department of social work for being pasted on the notice board of the department. Copy of deliberation was also furnished to the students Union.
5. On these backgrounds Sri A. K. Gupta, learned counsel for the petitioner contends that the chit was admittedly written not in the handwriting of the petitioner and that the same was found below the desk of the petitioner, about which the petitioner was not aware. He had also not used the said chit. The said chit did not relate to the paper in question. The petitioner was never given any opportunity nor he was ever confronted with the said chit. In the facts and circumstances of the case it cannot be said that the petitioner had used the-said chit or that his result can be cancelled on the said grounds. In support of his contention he relied on the decision in the case of Ram Janam Ram v. Vice-Chancellor, 1991 UPL Band EC 624 : (AIR 1991 All 322), that unless the chit is used for copying or the same is in the hand-writing of the petitioner the order cancelling the result is unsustainable. He also relied on the decision in the case of Mohd. Raufulzam v. Vice-Chancellor, Aligarh Muslim University, 1992 UPLB and EC642: (AIR 1993 All 136) in respect of the contention that principles of natural justice requires that the petitioner should be shown the chit and opportunity to inspect the same should have been given to him and he should have been confronted with' the material and should have been given opportunity to explain the same. In absence of such steps being taken the order of cancellation cannot be sustained.
6. Learned counsel for the University on the other hand produced original answer script along with original chit and the order passed by the Examination Committee on 20-9-1996 on which date Sri Gupta, learned counsel for the petitioner was permitted to inspect the same by an order passed on the said date. Admittedly Sri Gupla had inspected the same. On the date of hearing Sri Gupta contended that he cannot dcsipher the said chit and disputed that the material therein related to the paper in question. Admittedly the chit was not written by hand of the petitioner. On the comparision of the said chit with the answer script the said contention appears to be correct.
7. However, learned counsel for the University has read the contents of the said chit and submitted that the same has been used for answering question No. '7'. The said chit also contains material which related to the answer No. '4'. It appears from the order dated 8-11-1995 that the Examination Committee has recorded finding that the contents of chit has been used for answering question No. '7' and that the chit contains material for answering question No. '4'. Learned counsel for the respondent has also read the said chit in the open Court, in presence of Sri Gupta learned counsel for the petitioner on 20-9-1996 when order for inspection was passed, giving opportunity to Sri Gupta to examine the same. Sri Gupta has not contended seriously that the said chit does not contain any material as contained in the order dated 8-11-1996 as submitted by the learned counsel for the respondents. On the other hand he submitted that he has not been able to decipher the contents. In the circumstances there is nothing to show that the finding of the Examination Committee is perverse of that extent. Learned counsel for the respondent contends that it is not difficult to read the said chit and it can be read and accordingly he had also read the same. Though, admittedly the exact sentences in the chit were not copied in the answer script but in substance the same related to the paper concerned. It is also not the case of the University that the said chit was copied. The University contends that it contains material relating to the paper. Therefore I do not find any reason to disagree with the finding of the Inquiry Committee, which is matter of record and can be deciphered from the chit itself on comparision with the question paper.
8. The rules relating to the proceeding for adopting unfair means in the examination are contained in Section 29(1)(d) of the U. P. State Universities Act as applicable to Mahatma Gandhi Vidyapeeth, Varanasi therein after referred to as the University) provides that there should be a Examination Committee which shall have amongst other power to constitute a Sub-Committee for inquiring into the cases or proceeding with regard to the allegation against the examinee for adopting unfair means and for awarding punishment Statute 8.07 of the University 1st Statute provides that on the recommendation of the Examination Committee a candidates may be prohibited from appearing in more or some future examination, if he is found guilty of adopting unfair means. Ordinance 3(2)(a) of Chapter X of the 1st Ordinance of Kashi Vidyapeeth, Varanasi prescribes that if any material relating to the question paper concerning the subject-matter is found from a candidate whether he has used the same or not his examination for the year may be cancelled. The said rule has been inserted in Chapter 10 by way of amendment dated 26-5-1983 and was made applicable from the year 1983.
9. Therefore the rule prescribes that whether material has been used or not it would be sufficient if the same relates to the question paper concerned or the subject-matter. As has been held earlier, admittedly the chit relates to the subject-matter and was related to questions No. '7' and '4'. Therefore mischief of the said Ordinance 3(2)(a) is attracted in the present case.
10. Learned counsel for the petitioner contends that the chit was not found in possession of the petitioner but it was found below the desk of the petitioner. But no such case has been made out either in the writ petition or in the rejoinder affidavit though at the bar such case was sought to be made out on the basis of the petitioner's reply to the show cause. In the writ petition and rejoinder affidavit the case made out by the petitioner is that no chit was found from his and he had dentedthe recovery of the said chit from him. However he admits to have received notice of using chit but he has avoided to mention the date of receipt of the said notice. But the report says that the petitioner was caught red-handed in the Examination hall, and accordingly notice was served upon him, which fact has not been specifically denied or asserted by the petitioner. The very statement that the chit was found below the desk as has been sought to made out by the petitioner's counsel relying on the case as made out in the reply of the petitioner being Annexure 4 to the writ petition clearly indicates that the chit was recovered in the Examination hall.
11. No specific provision has been incorpo-rated as to what amounts to recovery of chit from the possession of a candidate, therefore, the petitioner cannot take advantage of the fact even if it is assumed that the chit was discovered below his desk. The Committee had duly considered all the aspect of the matter and has scrutinised the material and had come to a finding that the chit was recover from the petitioner in the Examination hall. The same being disputed question of fact, exercise for determination thereof cannot be undertaken by this Court in exercise of writ jurisdiction. Admittedly there was a report by the Examination incharge and the head of the department which had been considered by the Examination committee along with reply of the petitioner and after such consideration, a decision has been arrived at added with the fact that the recovered chit was also forwarded after issuing notices to the petition. The petitioner had never protested. Only when he was asked to show cause, he had made out a case, as indicated above in Annexure 4 to the writ petition.
12. In the circumstances it is difficult to rely on the case made out by the petitioner on the face of decision of the Examination Committee which had arrived at a particular decision on the basis of material placed before them.
13. So far as the decision in the case of Ram Janam Ram (AIR 1991 All 322) (supra) is concerned the same does not help the petitioner. Inasmuch as in the said case Hon'ble single Judge of this Court has held that paper was found in the desk of the petitioner which was not used by the petitioner and which was also not in the handwriting of the petitioner there in. Therefore in absence of clear out finding that the petitioner was foundcopying from the paper, the order of cancellation of the result would not be sustained. Relying on Ordinance No. 1.2 of Allahabad University it was held in the said case that the provisions contained therein gives rise to the rebutable presumption which can be rebulted by denial in the inquiry. But in the present case Ordinance 3(2)(a) itself provides that whether the contents is copied or not and if relates to the subject the same should be deemed to be adoption of unfair means resulting in a cancellation of whole examination. Therefore by reason of specific provision of the present Ordinance deferring from the other Ordinance giving rise to a distinc situation and fact, the ratio decided therein does not help the petitioner.
14. Then again in the case of Central Board of Secondary Education v. Miss Vineeta Mahajan. (1993) 6JT (SC) 165: (AIR 1994 SC 733)cited by the learned counsel for the respondents it was held that the finding of undesirable paper in possess ion of a candidate in her pencil box amounts to recovery of incriminating materials from the possession of a candidate. Whether she had used or not is immaterial. The possession of the paper relating to the examination satisfies the requirement of rule and there is no escape from conclusion that the candidate has used unfair means at the examination. Para 5 of the said judgment may be quoted for ready reference :
'The Rule clearly defines 'the use of unfair means at the examination' and lays down in simple language that a candidate having in possession, papers relevant to the examination in the paper concerned shall be deemed to have used unfair means at the examination. The sin qua non for the misconduct under the rule, is the recovery of the incriminating material from the possession of the candidate. Once the candidate is found to be in possession of papers relevant to the examination, the requirement of the Rule is satisfied and there is no escape from the conclusion that the candidate has used unfair means at the examination. The rule does not make any distinction between bona fide or mala fide possession of the incriminating material. The High Court reasoning that the candidate having not used the material inspite of the opportunity available to her, the possession alone would not attract the provisions of the Rule, in our view is not borne out from the plain language of the Rule.
'The present case stands on a safer footing because of the specific provision in the ordinance viz: used or not possession is sufficient.
15. Sri Gupta, learned counsel further contends that the said case is distinguishable because of the admission of the petitioner therein. In the present case the petitioner having not admitted the ratio decided in the said case cannot be at-tracted. In view of the observations made above the said contention of Sri Gupta is devoid of substance and does not merit consideration.
16. So far as the decision in the case of Mohd. Rauful Azam (AIR 1993 All 136) (supra) is concerned, it does not help the petitioner, in the facts and circumstances of the case. In the present case the chit was found in possession of the petitioner and so recovered upon being caught redhanded. The same was produced before mis Court. Sufficient opportunity was given to the learned counsel for the petitioner to examine the same. Even if assuming out not admitting the petitioner was not given opportunity to examine or inspect the said chit then again the same was allowed to the petitioner by this Court. Since it was found by the Examination Committee that the contents related to the paper concerned which fact has not been seriously contested by Sri Gupta nor the petitioner comes to deny the same by filing supplementary rejoinder-affidavit or otherwise.
So far as the fact that it was not recovered from the petitioner but was found under the desk of the petitioner, does not help the petitioner to bring the present case within ambit of the facts of the case of Modh. Rauful Azam (supra).
17. Moreover the finding of the Examination Committee cannot be brushed aside lightly when the committee has been entrusted to ensure the discipline in educational field, it is expected that it will act properly unless it is shown to the Court that they have not so acted or that their findings are perverse. Nothing has been shown to this Court that the finding is perverse or that they have not acted in consonence, with responsibility cast upon them.
18. For all these reason the writ petition fails and is accordingly dismissed. There will however, be no order as to costs. This order will, however, not prevent the petitioner if he is so eligible to appear in the examination M.A. (1) year in the year 1996 provided he so applies and isfound suitable and eligible to appear in the said examination.
19. Petition dismissed.