Gujarat High Court
Siddharth Ashwinbhai Parekh vs Vir Narmad South Gujarat University & 2 on 26 April, 2016
Equivalent citations: AIR 2016 (NOC) 644 (GUJ.)
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/3317/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3317 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowedNo
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy ofNo
the judgment ?
4 Whether this case involves a substantial question ofNo
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
SIDDHARTH ASHWINBHAI PAREKH....Petitioner(s)
Versus
VIR NARMAD SOUTH GUJARAT UNIVERSITY & 2....Respondent(s)
==========================================================
Appearance:
MR. SHALIN MEHTA SENIOR ADVOCATE with MR. SHIVANG SHUKLA,
ADVOCATE FOR THE petitioner.
MR. R.S.SANJANWALA, SENIOR ADVOCATE with MR AMIT V THAKKAR,
ADVOCATE for the Petitioner(s) No. 1
MR AR THACKER, ADVOCATE with MR. SHIVANG A. THACKER,
ADVOCATE for the Respondent(s) No. 1 - 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 26/04/2016
Page 1 of 33
HC-NIC Page 1 of 33 Created On Thu Apr 28 02:48:59 IST 2016
C/SCA/3317/2016 JUDGMENT
ORAL JUDGMENT
1. This petition under Article 226 of the Constitution of India when filed, it was for following prayers made in para 9:-
"(a) This Hon'ble Court may be pleased to admit and allow present petition.
(b) This Hon'ble Court may be pleased to issue a
writ of mandamus, or a writ in nature of
mandamus, or any other writ, order or
direction commanding the respondents to
declare results of the petitioner and permit the petitioner to continue with his internship.
(c) Pending admission, hearing and final disposal of present petition, this Hon'ble Court may be pleased to stay and suspend implementation, execution, enforcement and operation of communication dated 15.02.2016 and thereby direct the respondents to declare results of the petitioner and permit the petitioner to continue with his internship. Further this Hon'ble Court maybe pleased to call for the answer sheet of the petitioner for the kind perusal of this Hon'ble Court.
(d) ...."
2. The petition was then amended so as to challenge the order dated 8.3.2016 passed by respondent No.1 University cancelling the result of Third Year MBBS Part-II of the petitioner and debarring him from appearing in any examination of the University till the end of second semester of Academic Year 2015-16 and to command the respondents to declare the result of the petitioner.
3. As stated in the petition, the petitioner has outstanding academic record and is prosecuting study in 3rd Year in Discipline of Medicine and Surgery at Bachelor level. The Page 2 of 33 HC-NIC Page 2 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT examinations of theoretical paper of four subjects were taken from 2.1.2016 to 12.1.2016 followed by practical examination taken between 17.1.2016 to 23.1.2016. However, the result of the petitioner was not declared. The petitioner was intimated vide communication dated 15.2.2016 that his result was reserved and to remain present before the Disciplinary Committee (called as Aachar Samiti) of the University on 24.2.2016. The case of the petitioner is that the petitioner remained present before the Disciplinary Committee and rendered his explanation before the Disciplinary Committee.
However, his result is cancelled and he is debarred from appearing in any examination by the impugned order.
4. Learned senior advocate Mr. Shalin Mehta who initially appeared with learned advocate Mr. Shivang Shukla for the petitioner was fully heard. However, when learned advocate Mr. Thacker for the respondent was being heard, the petitioner requested to permit him to engage another advocate. It was then learned senior advocate Mr. R.S. Sanjanwala appeared with learned advocate Mr. Amit Thakkar for the petitioner and made further arguments.
5. Mr. Mehta submitted that a young student was straightway called by the Disciplinary Committee without first issuing any show cause notice to him and making him aware about the charges to be met with by him. Mr. Mehta submitted that as required by the Ordinance No.142, it was for the Syndicate to make independent inquiry and then to arrive at a decision, which is not done in this case. Mr. Mehta submitted that the decision to debar the petitioner from appearing in any examination and of cancelling the result of 3rd Year MBBS Page 3 of 33 HC-NIC Page 3 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT examination of the petitioner was though based on the report of the Disciplinary Committee, such report was not given to the petitioner, which seriously prejudiced the right of the petitioner to make effective representation against the proposed action to be taken. Mr. Mehta submitted that as per the instructions of the University, rough work is permissible in the answer book and by way of memory technique, if rough work is done by the petitioner, same could not be said to be in any way in violation of the instructions of the University or to reveal identity by the petitioner.
6. Learned advocate Mr. Avinash Thacker appearing for the respondents submitted that there was no violation of the principles of natural justice in taking the impugned decision. Mr. Thacker submitted that the facts of the case would clearly go to show that the petitioner was well aware when he was called by the Disciplinary Committee as to what he was required to meet with and therefore, before the Disciplinary Committee, the petitioner in his own handwriting submitted his explanation dated 24.2.2016 justifying his using page No.23 for doing rough work. Mr. Thacker submitted that in the nature of inquiry made by the Disciplinary Committee, it cannot be said that the rules of natural justice were not followed before taking the impugned decision. Mr. Thacker submitted that the petitioner was well aware about the instructions for doing the rough work, however, he violated the instructions with clear intention to reveal his identity to the examiners. Mr. Thacker submitted that the disciplinary committee after giving fair opportunity to the petitioner to explain his conduct of using p.23 of the answer books for rough working and after considering the pattern of writings on page 23 with "X" mark Page 4 of 33 HC-NIC Page 4 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT thereon found that the petitioner by using such pattern revealed his identity. Mr. Thacker submitted that the impugned decision is taken by accepting the report of the Committee to maintain the discipline and high standards in academic field. Mr. Thacker submitted that in about 100 cases, the university has accepted the report of the disciplinary committee. He, therefore, urged not to interfere with the impugned decision in exercise of the powers under Article 226 of the Constitution of India.
7. The Court called for answer books of the petitioner for Third MBBS Examination Part-II. The Court, on perusal of the answer books, finds that on page 23 of each answer book, the petitioner has written some words under the heading "Rough Working". It is the case of the petitioner that doing of rough work is permitted on last page of the answer book by many Universities and he has, therefore, used page 23 for rough working. The Court, however, finds that the last page of the answer book is page 24 and not page 23. It is required to note that the examinations taken were theoretical and generally rough work in theoretical examination is not required. The petitioner in later part of para 3.2 of his petition has averred as under:
"3.2.......Accordingly, the petitioner remained present before the Committee on 24.02.2016 and thereby offered his explanation in shape of reply. The petitioner was asked to explain as to why Page No.23 of the answer-sheet was used as rough page by the petitioner to which the petitioner explained that the said page was used as rough page and the bullet points were jotted down on the said page so as to enable the petitioner to refresh his memory while answering the question. During the said conversion, it was revealed to the petitioner that the attempt on part of the petitioner in using page No.23 of the answer-sheet as rough page is construed by respondents herein as unfair practice and the Page 5 of 33 HC-NIC Page 5 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT respondents have construed that by virtue of the same, the petitioner has attempted to reveal his identity to the examiners. Annexed hereto and marked as Annexure D is a copy of explanation offered by the petitioner."
The explanation of the petitioner reads as under:
" Dt. 24.02.2016
Siddharth A. Parekh,
TY MBBS (Part-2)
JANUARY-2016.
Seat No. 51.
To :
The Registrar,
VNSGU, Surat.
Respected Sir,
I had appeared before "ACHAR SAMITI on
24.02.2016. I was questioned about page 23 and page
24. I answered t hat on page 23, I had done 'Rough Working' and had written the points of answers which were asked in examination and which I needed to recollect. I also said that in our university, there is no provision written where to do rough working. But in many universities, there is a clear mention in exam. Guidelines that Rough Working should be done on last page and should be crossed out.
Regarding page 24, I said that the page was in constant wear and tear during writing and was inappropriate to write. Also examiner might missout accidentally correcting page 24 when page 23 is rough working. It is my pattern of writing. I have no intention in disclosing my identity to any of the examiner.
Please accept my reply of the questions and oblige me.
Yours faithfully, Sd/-Illegible Siddharth A. Parekh Seat No.51 TY MBBS(Part-2) In TY MBBS (Part-1) Answer Books on page 23 "Ruff Page" is written and no rough work has been done. I Page 6 of 33 HC-NIC Page 6 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT need to say that I have not written this "Ruff Page"
on page 23."
8. Mr. Mehta submitted that what was in fact done by the petitioner was part of the Memory Technique which is generally used by students by instantly jotting down some words before start of the examination to use the same to give correct answers.
9. With the affidavit filed on behalf of the respondents dated 30th March, 2016, copy of the report of the Disciplinary Committee is placed on record. From the report of the Disciplinary Committee, it appears that the Disciplinary Committee after considering the explanation of the petitioner and his pattern of using page no.23 of the answer book, found that the petitioner has tendency to use tactics to disclose/reveal his identity by particular marking and has reached to the conclusion that the petitioner has used such tactics by writing some words under heading of "rough working" and putting cross-mark thereon on page 23 to reveal his identity. The Disciplinary Committee therefore recommended for cancellation of the result of the examination and for debarring the petitioner from appearing in any other examinations. Such recommendation of the Disciplinary Committee has been accepted by the Syndicate. Decision of the Syndicate is communicated to the petitioner by the impugned order.
10. Learned Senior Advocates appearing for the petitioner however submitted that the impugned decision is in gross violation of the principles of natural justice as the petitioner was not served with any notice to meet with specific charges Page 7 of 33 HC-NIC Page 7 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT and the petitioner was thus deprived of making effective representation before the Committee. To bring home such point as regards non observance of the principles of natural justice before taking the impugned decision, they have relied on some judgments.
11. In the case of Commissioner of Central Excise versus M/S Brindavan Beverages (P) Ltd. delivered by the Hon'ble Supreme Court on 15.6.2007 in Appeal (Civil) No. 3417-3425 of 2002, relied on by the learned Senior Advocate Mr. Mehta, Hon'ble Supreme Court has held and observed in para 9 and 10 as under:
"9. We find that in the show cause notice there was nothing specific as to the role of the respondents, if any. The arrangements as alleged have not been shown to be within the knowledge or at the behest or with the connivance of the respondents. Independent arrangements were entered into by the respondents with the franchise holder. On a perusal of the show cause notice the stand of the respondents clearly gets established.
10. There is no allegation of the respondents being parties to any arrangement. In any event, no material in that regard was placed on record. The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show cause notice. In the instant case, what the appellant has tried to highlight is the alleged connection between the various concerns. That is not sufficient to proceed against the respondents unless it is shown that they were parties to the arrangements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted."
12. Hon'ble the Supreme Court in its judgment dated 18th Page 8 of 33 HC-NIC Page 8 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT September, 1972 in the case of B.D. Gupta versus State of Haryana relied on by Mr. Mehta, has observed as under:
"Held : The show-cause notice was vague, it did not indicate whether the explanation was called for regarding charge 1
(a) or charge 1 (b). As regards charge 1(b) it was finally withdrawn. The show-cause notice did not indicate which part of the explanation dated 18-12-1956 was unsatisfactory.
In what way it was unsatisfactory and what was the material before the Government on which it was thought that the explanation was unsatisfactory. The notice being vague, the appellant did not get any chance at all to show cause that he did not deserve a censure upon his conduct. The appellant was not given an opportunity to show that the sus- pension order against him had been unjustified and that he was entitled to full pay and allowances. Under Rule 7 (3), the Govt. has to make two decisions (i) whether the suspension was justified and (ii) what portion of the pay and allowances should be paid to the delinquent officer? [328 C] HELD : Further that the order regarding pay affects the pecuniary interest of the appellant. No real opportunity was given to the appellant to make an effective representation against the said order. The order regarding pay during suspension period was not merely consequential order to the first order. [331 B]"
13. Learned Senior Advocate Mr. Mehta then relied on the judgment in the case of Board of Technical Education, UP & Ors. v. Dhanvantri Kumar & Ors., reported in AIR 1991 SC 271 wherein it is observed by the Hon'ble Supreme Court that in absence of proper notices, inquiry held was correctly found by the High Court to be invalid for violation of the rules of natural justice.
14. Learned Senior Advocate Mr. Sanjanwala then relied on the observations made by the Division Bench of this Court in its judgment dated 20.11.2008 and 25.11.2008 in the case of THE GUJARAT UNIVERSITY Versus RAJNISH KUMAR RAI & 1 rendered in Letters Patent Appeal No. 1283 of 2008 in para 24 to 28 as under:
24. In order to test this defence of the respondent, we called upon the University to bring for our perusal the answer books of the respondent for the examination in Banking Law and also in other subjects in which the respondent had appeared at the examination from 21st to 25th April 2008. We found that Page 9 of 33 HC-NIC Page 9 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT the defence of the respondent was borne out because in the answer book for the subject of Company Law, the respondent had drawn lines with a ruler to explain the difference between Memorandum of Association and Articles of the Association.
As far as the answer book on the Banking Law subject is concerned, since the footruler was taken away from the respondent, the difference between Bill of Exchange and Promissory Note was explained after drawing the line between the two columns and such line was drawn by hand i.e. without footruler.
25. We have considered various decisions of the Apex Court and this Court cited at the bar. It was as far back as in 1962 that the Apex Court held in Board of High School and Intermediate Education, UP, Allahabad vs. Bagleshwar Prasad, reported in AIR 1966 SC 875 as under :
12. In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the Universities or appellant No.1 set up Enquiry Committees to deal with the problem posed by the adoption of unfair means by candidates, and normally it is within the jurisdiction of such domestic Tribunals to decide all relevant questions in the light of the evidence adduced before them. In the matter of the adoption of unfair means, direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in the light of probabilities and circumstantial evidence. This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, Courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities. In dealing with the validity of the impugned orders passed by Universities under Art. 226, the High Court is not sitting in appeal over the decision in question; its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, the High Court would be justified to quash that order. But the conclusion that impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. Enquiries held by domestic Tribunals in such cases must, no doubt, be fair and students against whom charges are framed must be given adequate opportunities to defend themselves, and in holding such enquiries, the Tribunals must scrupulously follow rules of natural justice; but it would, we think not be reasonable to import into these enquiries all considerations which govern criminal trials in ordinary Courts of law. In the present case, no animus is suggested and no mala fides have been pleaded. The enquiry has been fair and the respondent has had Page 10 of 33 HC-NIC Page 10 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT an opportunity of making his defence. That being so, we think the High Court was not justified in interfering with the order passed against the respondent.
However, it is necessary to bear in mind that the above principles were laid down in a case where the charge against the concerned student was that the student had looked back and copied from the answer written by the other candidate who was sitting behind him. The report of the Enquiry Committee showed that the complaint which they were to investigate referred to copying on a large scale in several papers and it was after examining all the complaints in light of the evidence available to them that the Committee made its final report and held that the concerned student and the students who were sitting behind him were guilty of having used unfair means. The High Court interfered with the decision of the University based on the above report of the Enquiry Committee and held that the student could not have looked and copied from the answer book of the other candidate and that there was no evidence to show that the other candidate could have copied from the student's paper with his connivance. The Apex Court held that it would not be reasonable to exclude from consideration the circumstances under which the whole inquiry came to be held and the general background of the prevailing disturbed and riotous atmosphere in the examination hall during the days that the examination was held at the concerned centre and that the High Court had ignored this background altogether.
The Apex Court also looked at the answer books of the two students and observed that the Court was not prepared to hold that the identical incorrect answers were given by the two candidates either by accident or by coincidence. The Apex Court also noticed that some of the incorrect answers and particularly the manner in which they were given clearly suggested that they were the result of either one candidate copying from the other or both candidates copying from a common source and that the significance of this fact had been completely missed by the High Court. The Court then observed that it would be inappropriate in such a case to require direct evidence to show that the student could have looked back and copied from the answer written by the other candidate who was sitting behind him.
Page 11 of 33
HC-NIC Page 11 of 33 Created On Thu Apr 28 02:48:59 IST 2016
C/SCA/3317/2016 JUDGMENT
The principle is, therefore, well settled that apart from the requirements that the inquiry held by the domestic Tribunal in such cases must be fair and students against whom charges were framed must be given adequate opportunities to defend themselves and in holding such inquiries the Tribunals must scrupulously follow rules of natural justice. The Court in case of judicial review has also to consider the question as to whether probabilities and circumstantial evidence do not justify the conclusion of the University.
26. Again in Maharashtra State Board of Secondary & Higher Secondary Education vs. KS Gandhi, (1991) 2 SCC 716, the Apex Court was concerned with the case of adoption of unfair means at an examination. The Court held that in such matters direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in light of the probabilities and circumstantial evidence. How to face it, is a serious problem and unless there is justification to do so, the Court should be slow to interfere with the decisions of domestic Tribunal appointed by the educational body like the Universities. The Court further held that in case where direct evidence is not available, the Examination Committee has of necessity to rely on circumstantial evidence which may include the answer given by the examinee, the report of the Superintendent of the centre, the invigilator and the report of the experts and other attending circumstances. The Examination Committee if it relied upon such evidence to come to the conclusion that the examinee has used unfair means in answering questions, then it is not open to the High Court to interfere with that decision, merely because the High Court may have taken a different view on reassessment of those circumstances. The Court has no jurisdiction to quash the order merely on the ground that the evidence available on record is insufficient or inadequate or on the ground that a different view could possibly be taken on the evidence available on the record. The Apex Court laid down the following principles in para 37 of the said judgment :
37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to Page 12 of 33 HC-NIC Page 12 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt but the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straitjacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries.
[emphasis supplied]
27. In the same vein, in a recent decision dated 18.7.2008 in Civil Appeal No. 4520 of 2008 (North West Karnataka Road Transport Corporation), the Apex Court has reiterated the following principles laid down in State of Haryana vs. Rattan Singh, 1977 (2) SCC 491 : The essence of a judicial approach is objectivity, excluding of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. ... ... .... The simple point is, was there some evidence or was thee no evidence not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of undertaking and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the Page 13 of 33 HC-NIC Page 13 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT record.
28. The discussion on this subject cannot be complete wihout reference to the decision of a Division Bench of this Court (speaking through Hon'ble Mr Justice PD Desai as His Lordship then was), in Siddharth Mohanlal Sharma vs. South Gujarat University, 1982 (1) GLR 233 where the Court considered several English and Indian decisions and laid down the following principles :
30. On gleaning through the illustrative decisions and examining their ratios closely, it would appear that the no evidence rule has the same content and meaning in our country as in England No evidence does not merely signify total dearth of evidence; evidence which does not reasonably support the conclusion is also comprehended within the meaning of the said expression. In other words, cases were this is complete lack of evidence and cases where the evidence, if any, if incapable of rationally leading to the conclusion reached, are both treated, on a par so far the applicability of the rule of no evidence is concerned. In none of these decided cases, there was no evidence: in the sense of there being utter paucity of evidence. There was some evidence, direct or circumstantial, on the basis of which the domestic tribunal had reached the conclusion of guilty. The grievance that there was no evidence was examined by applying the test whether or nor, accepting the whole of the evidence as it stood, the impugned conclusion followed legally or logically. In cases where direct evidence was not available, the totality of circumstances was carefully considered and the challenge that there was no evidence in support of the decision was examined by applying the test whether probabilities and circumstantial evidence justified the conclusion. Where direct evidence was available, the challenge was examined by applying the test whether it was so thoroughly inconsistent with th rest of the evidence as to make it impossible of acceptance. Mere suspicion, even if honestly and bona fide entertained on the basis of apparently cogent circumstances, was held to be out of bounds even in domestic inquiries, where the principle that in punishing the guilty scrupulous care must be taken to see that the innocents are not punished, was found to apply as much as it applies to regular criminal trials. In the ultimate analysis, the test which appears to have been applied is whether there was some material capable of having any evidential value. If not, the case was held to fall within the mischief of the rule of no evidence.
31. It would thus appear that the Court exercising the power of judicial review is to look upon the decision of the domestic tribunal a sacrosanct so long as it rests on findings of fact which are supportable on evidence in the sense explained above. The limit of Page 14 of 33 HC-NIC Page 14 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT indulgence is reached if the evidence does not meet with the above test or standard and the no evidence rule would then enable the Court to quash the decision on the ground that it discloses an apparent error of law.
The above decision of the Division Bench was also followed in Patel Jagrutiben Kalabhai (Minor) vs. Gujarat Secondary Education Board (Examination Wing), AIR 1992 Guj. 45 wherein this Court (speaking through Hon'ble Mr Justice CK Thakkar, as His Lordship then was) quoted the above principles and held as under : It is, thus, clear that no evidence does not mean only total dearth of evidence. It extends to any case where the evidence taken as a whole is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. It is well established that to reach a conclusion on no evidence is to commit an error of law apparent on the face of the record."
15. Learned advocate Mr. Thakkar on the other hand would rely on the judgment of the Hon'ble Supreme Court in the case of Karnataka Public Service Commission & Others versus B.M.Vijaya Shankar & Others, reported in (1992) 2 SCC 206 wherein the Hon'ble Supreme Court has held and observed in para 3 to 5 as under:
"3. Such instructions are issued to ensure fairness in the examination. In the fast deteriorating standards of honesty and morality in the society the insistence by the Commission that no attempt should be made of identification of the candidate by writing his roll number anywhere is in the larger public interest. It is well known that the first page of the answer book on which roll number is written is removed and a fictitious code number is provided to rule out any effort of any approach to the examiner. Not that a candidate who has written his roll number would have approached the examiner. He may have committed a bonafide mistake. But that is not material. What was attempted to be achieved by the instruction was to minimise any possibility or chance of any abuse. Larger public interest demands of observance of instruction rather than its Page 15 of 33 HC-NIC Page 15 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT breach.
4. Was natural justice violated ? Natural justice is a concept which has succeeded in keeping the arbitrary action within limits and preserving the rule of law. But with all the religious rigidity with which it should be observed, since it is ultimately weighed in balance of fairness, the courts have been circumspect in extending it to situations where it would cause more injustice than justice. Even though the procedure of affording hearing is as important as decision on merits yet urgency of the matter, or public interest at times require flexibility in application of the rule as the circumstances of the case and the nature of the matter required to be dealt may serve interest of justice better by denying opportunity of hearing and permitting the person concerned to challenge the order itself on merits not for lack of hearing to establish bonafide or innocence but for being otherwise 673 arbitrary or against rules. Present is a case which, in our opinion, can safely be placed in a category where natural justice before taking any action stood excluded as it did not involve any misconduct or punishment.
5. Competitive examinations are required to be conducted by the Commission for public service in strict secrecy to get the best brain. Public interest requires no compromise on it. Any violation of it should be visited strictly. Absence of any expectation of hearing in matters which do not affect any interest and call for immediate action, such as the present one, where it would have delayed declaration of list of other candidates which would have been more unfair and unjust are rare but well recognised exceptions to the rule of natural justice. It cannot be equated with where a student is found copying in the examination or an inference arises against him for copying due to similarity in answers of number of other candidates or he is charged with misconduct or misbehavior. Direction not to write roll number was clear and explicit. It was printed on the first page of every answer book. Once it was violated the issue of bonafide and honest mistake did not arise. Its consequences, even, if not provided did not make any difference in law. The action could not be characterised as arbitrary. It was not denial of equal opportunity. The reverse may be true. The tribunal appears to have been swayed by principles applied by this Court Page 16 of 33 HC-NIC Page 16 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT where an examinee is found copying or using unfair means in the examination. But in doing so the tribunal ignored a vital distinction that there may be cases where the right of hearing may be excluded by the very nature of the power or absence of any expectation that the hearing shall be afforded. Rule of hearing has been construed strictly in academic disciplines. It should be construed more strictly in such cases where an examinee is competing for Civil Service post. The very nature of the competition requires that it should be fair, above board and must infuse confidence. If this is ignored then, as stated earlier, it is not only against public interest but it also erodes the social sense of equality. The tribunal in issuing directions approached the matter technically and has attempted to make out much where it would have been better part of discretion to refuse to interfere. The tribunal completely misdirected itself in this regard. In our opinion its order cannot be maintained."
16. In the case of Controller of Examinations versus G.S> Sunder and Another reported in 1992 (2) GLH page 140, relied on by Mr. Thacker, the Hon'ble Supreme Court has held and observed in paragraph 10 to 12 as under:
10. We have given our careful consideration to the above submissions.
One thing must be put beyond doubt, in matters of enforcement of discipline this Court must be very slow in interference. After all, the authorities in charge of education whose duty it is to conduct examinations fairly and properly, know best how to deal with situations of this character. One cannot import fine principles of law and weigh the same in golden scales. In the present system of education, the system of examinations is the best suited to assess the progress of the student so long as they are fairly conducted. Interference by court in every case may lead to unhappy results making the system of examination a farce. For instance, we cannot but strongly condemn copying in the examination which has grown into canker of mass copying. Such unhealthy practices which are like poisonous weeds in the field of education must be rooted out in order that the innocent and the intelligent students are not affected. We fell that:
'the hour has come when we must clear The educational fields from poison and from fear, Page 17 of 33 HC-NIC Page 17 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT We must remould our standards-
build them higher, And clear the air as though by cleansing fire, Weed out the damning traitors to education, Restore her to her ancient place of awe.'
11. When the matter is approached from the above point of view, we find, as rightly submitted by the learned Attorney General, it is a systematic case of fraud committed by the first respondent. It cannot be a sheer coincidence that in all the semesters, namely, semesters III to VI the first respondent secured good marks and the other student K.R. Gandhi failed. There is nothing unbelievable in the first respondent admitting his mistake and giving a statement to this effect.
We also find that there is no question of violation of principles of natural justice. The first respondent knew the charges fully and he had admitted his guilt. That is why we are constrained to point out the technicalities of law should not be imported to further the cause of a student who had indulged in malpractice. Even if others are in complicity with the perpetration of fraud, that does not mean the first respondent is absolved of his guilt. Thus, we are unable to agree with the findings of the High Court which are hereby set aside.
12. We may also add that when the University wants to take action, certainly the blame cannot be laid at the doors of the University, directing action be taken against its officials. Though the observation of the learned Single Judge was diluted by the Division Bench, we consider such observations are not warranted in the circumstances of this case. "
17. In the case of Thummar Vishal G. & Ors. v. State of Gujarat & Ors. reported in 2013 (5) GLR 4523, the Hon'ble Division Bench of this Court has held and observed in para 13,14 and 16 as under:
"13. As pointed out by the Supreme Court in the case of PREM PRAKASH KALUNIYA v. PUNJAB UNIVERSITY reported in 1972 (O) GLHEL-SC-21464, the examinee should be adequately informed of the case he has to meet and given a full opportunity of meeting it. As to the extend and content of that information should or ought to be, would depend on the facts of each case. The examinee can ask for more information or details with regard to the material or evidence which may be sought to be used against him and normally, if he makes a request in that behalf, the University authorities, in order to inform him adequately of the case he has to meet, Page 18 of 33 HC-NIC Page 18 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT would supply him the necessary particulars or details of the evidence. In the very nature of things, no hard and fast rule can be laid down and so long as the Court is satisfied that the opportunity which was afforded to the examine was adequate and sufficient, it will not interfere with any orders prejudicial to him which may have been made by the University authorities.
14. In the case before us, the students were made known about the allegation of mass-copying. They appeared before the Unfair Means Committee. They simply denied the allegations but could not point out what led them to commit exactly the same mistake in the stepping of the answers. It appears that allegation has not been made against all the examinees but only a limited group of examinees. The Examiner first ascertained whether they sat in the same room and only when he was satisfied that they sat in the same room that show cause notice was issued.
16. We by ourselves have also seen the answer papers. We have already pointed out that the equation [at]2 has been written down by one student as [80]2, which is possible only if somebody has dictated and the other, without knowing its meaning, has copied."
18. In the case of Dharampal Satyapal Limited versus Deputy Commissioner of Central Excise,Gauhati & Ors., reported in 2015 (8) SCC page 519, the Hon'ble Supreme Court has held and observed in paragraph 35 to 40 as under:
"35. From the aforesaid discussion, it becomes clear that the opportunity to provide hearing before making any decision was considered to be a basic requirement in the Court proceeding. Later on, this principle was applied to other quasi- judicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary. It was, thus, observed in A.K. Kraipak's case (supra) that if the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries. In the case of Maneka Gandhi v. Union of India & Anr.13 also the application of principle of natural justice was extended to the administrative action of the State Page 19 of 33 HC-NIC Page 19 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT and its authorities. It is, thus, clear that before taking an action, service of notice and giving of hearing to the noticee is required. In Maharashtra State Financial Corporation v. M/s. Suvarna Board Mills & Anr.14, this aspect was explained in the following manner:
"3. It has been contended before us by the learned counsel for the appellant that principles of natural justice were satisfied before taking action under Section 29, assuming that it was necessary to do so. Let it be seen whether it was so. It is well settled that natural justice cannot be placed in a straight-jacket; its rules are not embodied and they do vary from case to case and from one fact- situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the action as made known is contemplated. No particular form of notice is the demand of law: All will depend on facts and circumstances of the case."
36. In the case of East India Commercial Company Ltd., Calcutta & Anr. v. The Collector of Customs, this Court held that whether the statute provides for notice or not, it is incumbent upon the quasi- judicial authority to issue a notice to the concerned persons disclosing the circumstances under which proceedings are sought to be initiated against them, failing which the conclusion would be that principle of natural justice are violated. To the same effect are the following judgments:
a) U.O.I. & Ors. v. Madhumilan Syntex Pvt. Ltd. & Anr.
b) Morarji Goculdas B&W Co. Ltd. & Anr. v. U.O.I. & Ors.
c) Metal Forgings & Anr. v. U.O.I. & Ors.
d) U.O.I. & Ors. v. Tata Yodogawa Ltd. & Anr.
37. Therefore, we are inclined to hold that there was a requirement of issuance of show-cause notice by the Deputy Commissioner before passing the order of recovery, irrespective of the fact whether Section 11A of the Act is attracted in the instant case or not.
38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the Courts have also repeatedly remarked Page 20 of 33 HC-NIC Page 20 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT that the principles of natural justice are very flexible principles. They cannot be applied in any straight-jacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the Courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-
examination of witnesses is treated as necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the Courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.
39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straight-jacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason - perhaps because the evidence against the individual is thought to be utterly compelling - it is felt that a fair hearing 'would make no difference' - meaning that a hearing would not change the ultimate conclusion reached by the decision-maker - then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corporation, who said that a:
(WLR p. 1595 : All E R p. 1294) 'breach of procedure...cannot give (rise to) a remedy in the courts, unless behind it there is Page 21 of 33 HC-NIC Page 21 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT something of substance which has been lost by the failure. The court dos not act in vain'.
Relying on these comments, Brandon LJ opined in Cinnamond v. British Airports Authority that :(WLR p. 593 : All ER p. 377) '... no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing'.
In such situations, fair procedures appear to serve no purpose since 'right' result can be secured without according such treatment to the individual.
40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the Courts. Even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non- grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of 'prejudice'. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing."
19. Thus, in the facts of each case, the Court is to ascertain whether the natural justice is violated while taking the decision under challenge. By communication dated 15.2.2016 placed by the petitioner at annexure-A addressed to him by Controller of the Examinations, the petitioner was intimated that his result of the examination was reserved and he was asked to remain present before the Committee on 24.2.2016 i.e. after a period of about seven days. As stated by the petitioner in his letter dated 24.2.2016 addressed to the Registrar (stated to be his explanation), the petitioner was questioned by the committee about page 23 and 24 of his answer books and he Page 22 of 33 HC-NIC Page 22 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT answered the questions. He stated that there is no written provision in the respondent university where to do the rough working. He then put forth his prepared defence and stated that in many universities, there are clear guidelines that the rough working should be done at the last page and should be crossed out. In his defence, he further added in his explanation that page 24 was in constant wear and tear during writing and was inappropriate to write.
20. It is required to note that the committee when was required to find out as to for what exact purpose the petitioner used page 23, the petitioner was required to be given opportunity to explain why he selected page 23 for doing rough work. It was not a case where the petitioner was alleged to have done other malpractice which would require issuance of notice, for his explanation to the allegations of such malpractice. Mr. Sanjanwala would however submit that the nature of procedure adopted by the committee of just calling the petitioner before it and incidentally asking him some questions and of considering his past record caused great prejudice to him as he is visited with serious punishment without making him aware about the charges to be met by him. Mr. Sanjanwala therefore, urged to remand the matter to the respondents so as to give sufficient opportunity to the petitioner to explain the charges sought to be levelled against him. The Court however finds that in the nature of inquiry conducted by the committee, it cannot be said that there was violation of the rules of natural justice. If the Committee had called the petitioner to inquire as regards using of page 23 by him for rough working and if the petitioner could effectively explain use of page 23 to do rough working, it could be said that the petitioner was in no way prejudiced when the Page 23 of 33 HC-NIC Page 23 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT committee formed its opinion based on the consideration of the pattern of writing made by the petitioner on page 23.
21. As observed by the Hon'ble Supreme Court in the case of Dharampal Satyapal Limited (supra), the principles of natural justice are very flexible and cannot be applied in any straight- jacket formula. It depends upon kind of functions performed and to the extent to which a person is likely to be affected. It may not be necessary to strike down action and refer the matter to the authorities to take fresh decision if non granting of hearing has not caused any prejudice to the person against whom action is taken. Therefore, every violation of the facet of natural justice may not lead to the conclusion that the order passed is always null and void and the validity of the order has to be decided on the touch stone of prejudice. Ultimate test is always the same i.e. test of prejudice or the test of fair play. It is always open to the Court to consider whether any purpose would be served in remanding the case while keeping in mind as to whether any prejudice is caused to the person against whom the action is taken.
22. In the case on hand, considering the nature of inquiry done by the disciplinary committee, the Court finds that giving of opportunity to the petitioner by the committee to appear before it and to explain use of page 23 was sufficient compliance with the rules of natural justice. The fact that the petitioner could mention guidelines of the other universities for use of last page for rough working and his explanation for using page 23 though it is not the last page of answer book shows that during the time available with him after he was intimated to remain present before the Committee, he prepared himself on the anticipated questions to be put by the Committee. Therefore, it is a case where the court finds that Page 24 of 33 HC-NIC Page 24 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT the petitioner had fair opportunity to make his defence before the committee on the subject of inquiry conducted by the disciplinary committee.
23. Learned Senior Advocates appearing for the petitioner however submitted that it is not the case of disclosing identity by the petitioner by using page 23 nor it is case of violation of the instructions issued by the university for the examination.
24. Instructions attached with the answer book reads as under:
"(1) Write on both sides, if necessary Rough Work, should be done on left hand side, and in pencil only. (2) Enter on the cover page of the Answer Book your Examination Seat number the name of the Examination, the date and the center of the Examination the subject to the question paper, number of the paper and/or the section and language of the answers. (3) Do not write your name or the put any mark of identity in any part of your answer book. For writing an answer (including Heading) use Black/Blue Ink Only. If any change you have to change pen,you must inform your block supervisor and get his signature on the answer book from where the pen is changed. (4) No sheet shall be torn from answer books provided.(5) All answer books supplied shall be given up whether written in or blank. (6) Nothing should be written in the marks column of these books or on the question paper of blank. (7) Each section shall be answered separately (in separate book). Examiners do not undertake to examine the answer written in the wrong book, tie together all answer books relating to the same paper of section and question on a new page, write number of the question in the margin before beginning to write and answer to it. (9) Exchange of written materials, stencils, mathematical instruments etc. and pagers Digital Diary and Cellular Mobile Phone in Examination Hall is strictly prohibited. (10) You will not be permitted to leave the examination hall until an hour after the question paper are distributed (11) If you want anything, apply to your supervisor but do not leave your seat on any account. During the ten minutes, you will not be allowed to leave the hall. (12) You will be instantly Expelled and your name will be reported to university if you : (a) Bring any book notes or Page 25 of 33 HC-NIC Page 25 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT scribbling paper into the examination hall. (b) Speak or communicate in any other way with, any other candidate while the examination hall. (13) A warning bell will be given ten minutes before the end of the examination, at the second bell, you must stop writing and be ready to hand over your answer book to the supervisor, you must not leave your seat until all your answer book are collected by the supervisor (14) Smoking is prohibited in the Examination Hall (15) Candidates who are not in their Seats by the time notified will not, as a rule, be admitted to the examination. The Senior Supervisor may however at his discretion admit those who give him a satisfactory reason for the delay. (16) It is compulsory to write on each and every line in the answer book.
N.B.: A candidate who disobeys instructions issued by the senior or the junior supervisor or who is guilty of rude or disobedient is liable to be instantly expelled."
25. As per instruction no.1, if the student finds it necessary to do the rough work, such rough work is to be done on the left side and in pencil only. As per instruction no.3, a student shall not write his name or put any mark of identity in any part of his answer book. Learned Senior Advocates argued that for the purpose of doing rough work, instruction no.1 was confusing and ordinarily, since the rough work is done by the student on the last page of the answer book which is otherwise permitted by the other universities, doing of rough work by the petitioner on page 23 of the answer book could not be said to be in violation of instruction No.1. However, it is not disputed that the petitioner used the pen instead of pencil for writing on page no.23. Thus, there was a violation of instruction issued by the university. If this violation in the context of use of page 23 and his explanation for not using page no.24 is examined, it appears that the petitioner had put the words under heading of "Rough Working" and crossed them with some purpose. At this stage, it is required to note that the petitioner has come out with untenable explanation before the Committee that page 24 Page 26 of 33 HC-NIC Page 26 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT was in constant wear and tear condition and was inappropriate to write. It appears that the explanation was a conceived idea or concocted theory to justify the use of page 23 by the petitioner which is believed by the disciplinary committee as revealing of identity by the petitioner. The Court finds page 24 is back side of page 23.Both page 23 and page 24 of each answer book are found in good condition and the petitioner had no reason to say that page 24 was in wear and tear condition. Page 24 is the last page of the answer book and, therefore, when page 23 was possible to be used for doing the rough work, page 24 could have been equally used for doing the rough working if at all the rough working was necessary.
26. Learned Senior Advocate Mr. Sanjanwala however submitted that simply because the petitioner gave explanation for not using page 24 for doing rough work, his use of page 23 for rough work would not ipso-facto make out a case of revealing identity by him. Mr. Sanjanwala submitted that the suspicion cannot take place of proof and simply on suspicion, the petitioner could not have been imposed harsh punishment of cancellation of his result and debarring him from appearing in any other examination. The Court however finds that the petitioner kept page 24 blank and placed cross mark thereon. At page 23, the petitioner drew line under the heading of "Rough Working" and the petitioner put some words under the said heading and then put cross mark thereon. It is observed by the Committee that it got examined all other answer books of all the subjects of the examination, and out of that, answer books of the petitioner alone were found with the rough work done under the heading of rough working at page 23 by leaving page 24 blank and no other student has done the rough work or used any page of answer books for rough work.
Page 27 of 33
HC-NIC Page 27 of 33 Created On Thu Apr 28 02:48:59 IST 2016
C/SCA/3317/2016 JUDGMENT
From such consideration by the disciplinary committee while examining the answer books of the petitioner when seen in the context of the explanation of the petitioner for using page 23 and not using page 24 on the ground that it was in wear and tear condition, it would appear that the disciplinary committee was fully satisfied to reach to the conclusion that the petitioner by using particular pattern revealed his identity. The Court would not like to sit in appeal over such satisfaction and finding recorded by the disciplinary committee which comprises of not less than 15 learned Members. If the instruction for use of the page of answer book for doing rough work was taken to be confusing by the petitioner, at least the instruction to do rough work in pencil only was clear and not confusing at all. No explanation is rendered by the petitioner for doing the rough work by using pen instead of using the pencil except as argued by the learned Senior Advocates that as per the instruction given by the supervisor in the examination hall, pencil was to be used only for drawing of figure, if required while answering particular question. When there was a specific instruction in writing to use only pencil for doing the rough work, oral instruction could not be otherwise and therefore, non use of pencil and use of pen to write some words under the heading of rough working at page 23 and leaving page 24 blank though both pages were in good condition was rightly taken as tactics using particular pattern by the petitioner to reveal his identity by violating the instructions of the university for the examination.
27. In the case of Secretary, Tamil Nadu Public Service Commission v. A.B. Natarajan & Ors., reported in AIR 2015 SC 176, the Hon'ble Supreme Court has held and observed in paragraph 13 to 19 as under:
Page 28 of 33HC-NIC Page 28 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT "13. It is an admitted fact that serious irregularities had been committed by the candidates in their answer books. If one looks at the instruction, which had been given to the candidates for writing the answer books, it is clear that they had been informed in unequivocal terms that they had to use only blue, blue-black or black ink and they were supposed to use only fountain pen, steel pen or ballpoint pen. In spite of the said instructions, several candidates had used sketch pens, pencils and pens or pencils with different colours. Use of different colours or pencil could have given some indication to the examiner about the identity of the candidate.
These facts clearly show that either the candidates were absolutely careless or they wanted to give some indication with regard to themselves to the examiner. If a candidate writes his answer book giving some indication with regard to himself with the help of a different ink or pencil other than the prescribed writing instrument and the colour of ink, one can definitely presume that the candidate did not act in a bona fide manner.
14. There was a specific direction that the candidates had to start writing the answer books from the first page and no page should be left blank. In spite of the said clear instruction, several candidates kept several pages blank and what is most astonishing is that some of the candidates, after keeping the entire page blank i.e. without answering the question had written some irrelevant words or names. As for example, in one case on the entire page 'MANI' was written. This a nothing but some indication to the examiner, which is definitely not permitted.
15. Many of the candidates had given some indication with regard to some religion by writing the words or signs connected with a particular religion. A candidate is not supposed to give his identity or any indication with regard to himself in the answer books. If he does so, he is violating the instructions given to him which would amount to nothing but misconduct.
16. In all competitive examinations, an effort is always made to see that the answer books are examined impartially and without any bias. An Page 29 of 33 HC-NIC Page 29 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT effort is always made to see that identity of the candidate is not revealed to the person examining the answer books so as to see that the identity i.e. the name or roll number of the candidate is not revealed. A code number is given to each answer book. The roll number given to the candidate is normally replaced by another number so that even the examiner may not know the correct roll number of the candidate. This is done so as to remove the possibility of giving any indication by anyone to the examiner about the identity of the candidate. Upon completion of the examination work, original roll number of the candidate is put on the answer book or one the sheet prepared for the purpose of assigning marks, but in any case, the examiners are not permitted to know anything about the candidate or his identity.
17. If the candidates start giving indications with regard to themselves by writing their name or some code word or some indication with an intention to convey the same to an examiner, so that he may have some undue favour, is a thing which is not approved. If such an attempt is permitted to be made, sanctity of the examination work would not be maintained. The entire object behind giving code number etc. would be frustrated if all these things are permitted or tolerated.
18. Normally, a straightforward candidate, who does not want to indulge in any malpractice, would never make any effort to reveal his identity or make any special marking in his answer book. The purpose behind doing something abnormal or something which is not permitted, can be said to be an indication to the examiner about the identity of the candidate. Such an action on the part of the candidate cannot be tolerated if one wants clean, fair and transparent process of selection.
19. In the instant case, it is an admitted fact that there were serious violations of the instructions given to the candidates while answering the questions. Although all these details were placed before the learned single Judge, the learned single Judge did not give importance to these irregularities and dismissed the petitions, but when the appeals were filed, in Page 30 of 33 HC-NIC Page 30 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT our opinion, the Division Bench of the High Court rightly understood the importance of such irregularities and allowed the appeals, by setting aside the selection of the candidates who had committed such irregularities while writing their answer books. We are of the view that if such a strict view is not taken by a constitutional body which has been entrusted with the work of selecting best candidates, the entire purpose behind having the Commission or any other such body for examining merit of candidates would be frustrated. We are, therefore, of the view that the appellate Court was absolutely justified in allowing the appeals and by holding that all those, candidates who had committed material irregularities could not be declared selected."
28. Learned Senior Advocate Mr.Sanjanwala however submitted that the petitioner has excellent academic career and there was no reason for the petitioner to reveal his identity to get his answer books examined by any particular examiner. He submitted that with his last affidavit, the petitioner has placed on record relevant results/certificates to show that the petitioner has bright academic career throughout.
29. It appears that the disciplinary committee has also examined four answer books of the examination of the petitioner taken in the month of January, 2015 and had shown to the petitioner. The disciplinary committee found that in the said examination, the petitioner had used mark "Ruff" with particular sign. The Disciplinary committee found that the petitioner has tendency of using tactics to disclose his identity in the examinations. Mr. Sanjanwala submitted that such was not the part of the inquiry and the petitioner had no fair opportunity to meet with such charge. The petitioner however at the bottom of his explanation stated that in TY MBBS (Part-
1)Answer Books on page 23, "Ruff Page" is written and no rough work has been done. He has further added that he has not written Ruff Work on page 23. The disciplinary committee Page 31 of 33 HC-NIC Page 31 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT in the context of writing 'Ruff' was considering as to whether when in theoretical examination, no rough work was required, the petitioner writing on page 23 of the answer books by using particular pattern could be only with an intention to reveal his identity. Therefore, when in the facts of the case, the disciplinary committee is satisfied that what is done by the petitioner by using page 23 is an act of the petitioner to reveal his identity and when it has recommended to the syndicate to impose punishment of cancellation of the result of the petitioner debarring him from appearing in any examination of the University till the end of second semester of Academic Year 2015-16, decision of the syndicate to accept such recommendation of the disciplinary committee is not to be interfered with in exercise of the powers under Article 226 of the Constitution of India. Learned Senior Advocate Mr. Sanjanwala would however urge that considering the bright record of the petitioner, the Court may direct the respondent university to get the answer books of the petitioner examined by any other examiner of the other university so that it could be known whether the marks given to the petitioner could have been given on correct assessment of the answers given by the petitioner. Such request however cannot be accepted as the disciplinary committee has on examination of the answer books of the petitioner found to be the case of revealing identity by the petitioner and the court on going through the explanation dated 24.2.2016 annexure D finds that the explanation given by the petitioner would in fact go to support the satisfaction reached by the disciplinary committee that the use of page 23 for doing rough work and not using of page 24 on the ground that the same was in wear and tear condition was the tactic of the petitioner to reveal his identity Page 32 of 33 HC-NIC Page 32 of 33 Created On Thu Apr 28 02:48:59 IST 2016 C/SCA/3317/2016 JUDGMENT especially when writings on page 23 under the heading of rough working and putting X Mark thereon with the pen was in violation of instruction no. 1 for doing the rough work. After the report of the committee was placed on record of the petition by affidavit on behalf of the respondent, the petitioner filed rejoinder affidavit stating that no proper procedure was followed and that the impugned order is based only on suspicion and conjecture. However, he could not dispute that he could meet with the questions paused to him by the disciplinary committee in connection with his using page 23 of the answer books. What is observed by the Committee in presence of the petitioner is put in its report. Therefore, non- supply of the copy of the report of the disciplinary committee to the petitioner has, in no way, prejudiced the petitioner when the impugned decision is based only on the report of the committee. When the impugned decision is to enforce discipline in examination in the system of education, it is not to be interfered with in exercise of the powers under Article 226 of the Constitution of India.
30. For the reasons stated above, the petition is rejected. Notice is discharged. Ad interim relief stands discharged.
At this stage, learned advocates for the petitioner requested to continue interim relief for some time to enable the petitioner to carry the matter before higher forum. However, in the facts of the case, request is rejected.
Sd/-
(C.L.SONI, J.) Omkar/anvyas Page 33 of 33 HC-NIC Page 33 of 33 Created On Thu Apr 28 02:48:59 IST 2016