Rajasthan High Court - Jaipur
Vibha Avasthi Daughter Of Shri Kumar ... vs Rajasthan University Of Health ... on 1 February, 2019
Author: Veerendr Singh Siradhana
Bench: Veerendr Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 22768/2018
Vibha Avasthi Daughter Of Shri Kumar Sambhavam Avasthi,
Aged About 21 Years, Resident Of Mohalla Brahmchari,
Satyanarayan Temple, Alwar, Rajasthan.
----Petitioner
Versus
1. Rajasthan University Of Health Sciences, Through Its
Registrar, Sector 18, Kumbha Marg, Pratap Nagar, Jaipur.
2. The Controller Of Examination, Rajasthan University Of
Health Sciences, Sector 18, Kumbha Marg, Pratap Nagar,
Jaipur.
3. Dean, Jhalawar Medical College, Nh-12, Kota Road,
Jhalawar, Rajasthan.
----Respondents
For Petitioner(s) : Mr. A.K. Sharma, Senior Counsel, with Mr. Vishnu Kant Sharma, Mr. Mukesh Choudhary for Mr. Tanveer Ahamed For Respondent(s) : Mr. Mohd. Ashfaq Khan, Mr. Sanjeev Kumar Singhal HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Order 01/02/2019 As a consequence of use of Unfair-means in the first MBBS (Main Examination)-July-2018; the Unfair-means Enquiry Committee has cancelled the Examination of the petitioner and she has been further debarred for one subsequent examination, if the examination is held once a year or two subsequent examination if the examination is held twice a year; of which the petitioner is aggrieved of, and therefore, has instituted the present writ application, with a prayer to quash the same.
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2. Briefly stated, the essential skeletal material facts relevant to the controversy are that the petitioner while writing her examination of Biochemistry Paper-I, on 16th July, 2018, was charged of use of unfair-means for the Invigilator found a paper chit in her possession. It is pleaded case of the petitioner that while she was busy solving the paper some one from behind threw the paper chit on to her table. However, she did not take note of it and continued to solve her paper. Suddenly, the Invigilator came to her table and enquired about the paper chit. According to the petitioner, she apprised him of the correct position and further informed that neither the chit belongs to her nor she made use of it. The Invigilator, did not accept the explanation and seized the answer script along with the paper chit recovered.
3. Mr. A.K. Sharma, learned Senior counsel assisted by Mr. Vishnu Kant Sharma, Advocate, strenuously argued that the petitioner never indulged in any activity of cheating etc. for the petitioner was a brilliant student, as would be evident from her academic achievements for she secured 96% and 94% marks in her Secondary School and Senior School Certificate Examinations, respectively, conducted by the Central Board of Secondary Education (CBSE), Delhi. Further, the petitioner was also awarded Certificate of Merit in Senior School Certificate Examination for her outstanding performance being among the top 0.1 per cent of successful candidate in Biology. She was also facilitated with a Certificate by the then Minister, Human Resource Development, Government of India, for her wonderful performance in Class XII Examination-2014. Petitioner successfully participated in the National Eligibility cum Entrance Test-2017 (NEET-2017) and was admitted to MBBS Course. While studying in Jhalawar Medical (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (3 of 26) [CW-23177/2018] College, she devoted herself towards studies and secured highest marks in the First Semester Examination. Moreover, the petitioner had never been accused of use of unfair-means in her entire brilliant carrier. She has also been awarded with the 'best student' prize and there has been no complaint against her. According to the learned counsel, while the petitioner was busy solving her Biochemistry Paper-I, on 16th July, 2018, someone from behind threw the paper chit of which she did not take note, however, that was recovered from her table by the Invigilator. Neither the petitioner made use of the paper chit nor it belonged to her. Further, even the Invigilator also wrote on the answer sheet of the petitioner that he did not catch her copying.
4. It is further pointed out that someone else is escape adverse consequence had thrown the paper chit on to the table of the petitioner from behind. The petitioner was topper in the subject of Biochemistry, and hence, there was no occasion for her to use any unfair-means. She also addressed a representation on 21 st July, 2018, in the circumstances aforesaid, to the Controller of Examination inter-alia narrating the correct factual position followed by another representation dated 29th July, 2018, in identical terms.
5. On 2nd August, 2018, while the petitioner appeared before the Unfair-means Enquiry Committee, in response to communication dated 28th July, 2018; she reiterated her earlier stand categorically stating that someone else from behind threw the paper chit on to her table while she was busy writing her answer(s) and she did not copy from it. The petitioner stated so while the Committee called upon her to submit an application elaborating the incident.
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6. Referring to the report of the Subject Expert dated 30 th July, 2018, as relied upon by the respondent-University, learned counsel would contend that the petitioner did not use of the material recovered for the indication, indicating it by encircled mark with red colour, is a finding without any basis for there was no mark (encircled) by red colour, as would be evident from the recovered material (Annexure R/1-2).
7. Reiterating the contents of para 7 of the writ application, it is pointed out that the explanation furnished by the petitioner, during the course of personal hearing, before the Unfair-means Enquiry Committee on 2nd August, 2018, has not been denied, wherein the petitioner made a categorical statement that it was someone else, who threw the paper chit on to her table and the petitioner correctly answered the questions even before the Unfair-means Enquiry Committee.
8. Learned Senior counsel also referred to the Minutes of 121 st Meeting of Board of Management, held on 1 st October, 2018, and contended that the recommendations of the Unfair-means Enquiry Committee dated 2nd August, 2018, along with others, were approved in a mechanical manner without application of mind, without any discussion and recording reasons in support thereof. Moreover, on 2nd August, 2018, there was no decision by the Board of Management, as would be evident from the Minutes of 121 st Meeting of Board of Management, that was held only on 1 st October, 2018. That apart, the Board of Management in its decision specifically observed that the decisions arrived at by the Unfair-means Enquiry Committee and Examination Committee, should be implemented only after approval by the Board of Management. Thus, the decision in the case of the petitioner was (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (5 of 26) [CW-23177/2018] already arrived at on 2nd August, 2018, by the Unfair-means Enquiry Committee; hence, the impugned order dated 29th September, 2018, cancelling present examination of the petitioner and further debarring her; is bad in the eye of law.
9. According to the learned counsel for the petitioner Ordinance 152(4) provides for norms of punishment and according to Clause 4(b)(i), at best the present examination of this particular paper could have been treated to have the effect of petitioner having obtained 'Zero' mark with consequences to follow, whereas punishment one contemplated under Clause 4(c)(i), has been inflicted. Hence, the matter calls for interference by this Court in its exercise of writ jurisdiction setting aside the impugned order dated 29th September, 2018 (Annexure-6). Referring to opinion of a Coordinate Bench of this Court in the case of Shabir Khan Vs. Rajasthan University of Health Science: SBCWP No.1714/2017; it is contended that the matter requires, at least, a review of the quantum of punishment with reference to contemplation under Ordinance 152(4) (b) (ii) for the behaviour of the petitioner was satisfactory while she was allegedly caught with the objectionable material.
10. Per contra: Mr. M.A. Khan, learned counsel for the respondent-University vociferously argued that the paper chit (caught material), was recovered from the pencil box of the petitioner. Further, the petitioner did make use of the paper chit (caught material), that was recovered from her while answering question No.7(b), as would be evident from the findings arrived at by the Unfair-means Enquiry Committee. It is further pointed out that a glance of Ordinance 152-4 (b)(i), would reflect that it applies to a situation where a candidate is found, having in (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (6 of 26) [CW-23177/2018] possession or within his reach, any material relevant to the syllabus of the examination paper concerned but has not copied from or used it.
11. Learned counsel also laid before this Court the original answer script of the petitioner of Biochemistry Paper-I, on a direction made by this Court and stated that from the record, it is evident that the paper chit recovered from the petitioner and the answer written by the petitioner substantiates his stand so also the findings arrived at by the Unfair-means Enquiry Committee, to the effect that the petitioner did make use of relevant recovered printed caught material. The encircled mark in the original answer script by red colour specifically indicates the use of printed caught material by the petitioner as reported by the Subject Expert in the report dated 30th July, 2018 (Annexure R/1/3). Thus, the Unfair- means Enquiry Committee, rightly drew distinction while inflicting penalty in the cases where the caught material was not related and could not be used than the case of the petitioner wherein the caught material was related to the subject and was in fact used by the petitioner.
12. Mr. M.A. Khan, Advocate, referring to Annexure R/1/1, emphasized upon the report of the Invigilator wherein it was specifically recorded that micro-zerox was found during exam at 12.45 PM. It was found in pencil box but she was not copying at that time.
13. It is further contended that behaviour of the petitioner was satisfactory, and therefore, she has been inflicted with minimum punishment by the Unfair-means Enquiry Committee in view of the Ordinance 152(4)(c), for the petitioner did make use of the caught (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (7 of 26) [CW-23177/2018] material whereas Clause (b), is attracted where the caught material was not used.
14. Learned counsel would further urge that for a variety of reasons, the meeting of Board of Management could not take place for a long time, and therefore, to avoid hardship to the candidates, who might have been eligible to write the future examination, according to the punishment inflicted by the Unfair- means Enquiry Committee; may not suffer. Hence, the decisions were acted upon. Be that as it may, in the case of the petitioner, the decision of the Unfair-means Enquiry Committee, has been approved by the Board of Management in its 121st Meeting held on 1st October, 2018. Thus, there is no element of any illegality in the action of the respondent-University. Further, the findings and punishment inflicted by the Unfair-means Enquiry Committee, has been approved by BOM, there was no need to record and repeat those reasons again.
15. In order to fortify his stand, learned counsel has relied upon the opinion of the Apex Court of the land in the case of Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and ors.: (1991) 2 SCC 716 and Director (studies), Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh and Ors. Vs. Vaibhav Singh Chauhan: (2009) 1 SCC 59, emphasizing that Higher Courts should not ordinarily, interfere with the functioning and order of educational institutions unless there is a clear violation of some statutory rules or legal principle. Learned counsel further reiterated that purity of examinations must be maintained and no sympathy or leniency is required to be (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (8 of 26) [CW-23177/2018] shown to the candidates, who are indulged in the use of Unfair- means.
16. I have heard the learned counsel for the parties and with their assistance perused the relevant materials available on record as well as gave my thoughtful consideration to the rival submission at Bar.
17. Indisputably, the micro-zerox copy of the printed caught material was recovered from the table of the petitioner from her pencil box. However, there is no denial of the 'on the spot report' made by the Invigilator on 16th July, 2018, while the petitioner was writing her examination of Biochemistry Paper-I and according to the Invigilator micro-zerox copy of the printed material was recovered from her Pencil Box though at the relevant time she was not found copying.
18. From the original answer script laid before this Court by the respondent-University, containing the micro-zerox copy of the printed material and the answer written by the petitioner encircled by red colour with the report of the subject expert stating that the caught material as answer of question No.7(b) and the candidate did make use of it; has substance.
19. The matter was enquired into by the Unfair-means Enquiry Committee, affording an opportunity of personal hearing to the petitioner while concluding with the printed material recovered from the Pencil Box of the petitioner, was related to question No.7(b) of Biochemistry Paper-I and the petitioner did make use of it, as opined by the subject expert in report made on 30 th July, 2018. Moreover, the petitioner did accept the, on the spot, report that was made by the Invigilator on 16 th July, 2018, when the printed material was recovered from her Pencil Box though she (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (9 of 26) [CW-23177/2018] was not copying at the relevant time. The petitioner did not dispute the report of the subject expert and these facts are verified from the micro-zerox copy of the printed material and the encircled portion of the answer written by the petitioner while answering question No.7(b).
20. The Unfair-means Enquiry Committee in the backdrop of contemplation under Ordinance 152-4 (c)(i) inflicted the penalty of cancellation of present examination and further debarred for one subsequent examination if the examination is held once a year or two subsequent examinations if the examination is held twice a year. At this juncture, it will be profitable to take note of the contents to the text of Ordinance 152, which reads thus:
O. 152:
(Control of Unfair-means and disorderly conduct)
1. No candidate shall use Unfair-means or indulge in disorderly conduct at, or in connection with the examinations.
Explanation.--Here the 'candidate' means an examinee taking an examination in a particular and also includes every student on the Rolls of the University.
2. (a) Unfairmeans shall include the following:
(i) Making a false representation pertaining to the eligibility of the candidate to appear in the examination;
(ii) Communication or attempting to communicate with the Registrar of the University or any person of his office, or Superintendent of Examination, as any person connected with the conduct of examination or with any paper-setter or examiner, with the object of finding out the name and address of the paper-setter or examiner, or finding out the questions that have been set by the paper-setter or examiner, or with the object of influencing an examiner in the award of marks, or with the object of unduly influencing anyone of them in the discharge of his duties in connection with the examinations;
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(iii) Talking to another candidate or to any unauthorised person inside or outside the examination room during the examination hours without the permission of a member of the supervisory staff, before handing over the answer-book to the invigilator;
(iv) Giving or receiving assistance in answering the question appears to or from any other candidate/person in the examination hall or outside during the examination hours;
(v) During examination time having in possession or access to;
(a) Any paper, book, note or any other unauthorised material which has relevance to the syllabus of the examination paper concerned.
(b) Anything written on the inkpot, cover, inkpot scale, or any other instrument or any kind of furniture or any other substance, which may have relevance to the syllabus of the examination-paper concerned;
(c) Anything written or signs made on the body of the candidate or his clothes/garments-hand-kerchief etc. which may have relevance to the syllabus of examination paper concerned;
(d) Anything written, or signs made on the admission card/question paper which have relevance to the syllabus of the examination paper concerned;
(vi) Swallowing or attempting to swallow, or destroying or attempting to destroy a note or paper or any other material, or running away with the material with the intention of destroying the evidence of using Unfair-means, or being guilty of causing disappearance or destruction of any such material either by himself or with the assistance of any other person;
(vii) Smuggling a question paper or an answer-book (main or supplementary) or part thereof into the examination room/centre or out of it;
(viii) Replacing or getting replaced an answer-book (main or supplementary) or part thereof during or after the examination;
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(ix) Impersonating any candidate or getting impersonated by any person for taking the examination;
(x) Copying of a substantial part of any work/material without any acknowledgement by a candidate in his dissertation/thesis/field-survey work;
(xi) Tampering with records of an examination;
(xii) Using any obscene or abusive language in his answer- book;
(xiii) Cheating or attempting to cheat the University in any manner; and
(xiv) Any act or omission, by or on behalf of the candidate connected with the examination, whether prior to or subsequent to such examination or the result thereof, which in the opinion of the Syndicate is Unfair-means.
(b) Disorderly conduct:
1. The candidate on the examination hall or outside but within the campus of the examination centre during the examination shall be under the disciplinary control of the Superintendent of the Centre or his nominee and shall obey his instructions.
2. Disorderly conduct includes:
(i) Disobeying the instructions of the Superintendent/Addl.
Superintendent/Asstt. Superintendent/Invigilator or any member of the Flying Squad;
(ii)Threatening, intimidating or assaulting the Superintendent, Invigilator, any member of the Flying Squad or any other member of staff working at the examination centre, or another candidate in connection with the examination before, during or after the examination hours:
(iii) Misbehaving with the Superintendent, Invigilator or any member of the Flying Squad or any other member working at the examination centre in connection with the examination before, during or after the examination hours:
(iv) Leaving the examination roo, before the expiry of half an hour after the commencement of the examination or (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (12 of 26) [CW-23177/2018] leaving the examination room without obtaining the permission of the Invigilator or without handing over the answer-book to the invigilator or without signing the attendance sheet;
(v) Tearing off or mutilating an answer-book (Main or supplementary) or any part thereof;
(vi) Disturbing or disrupting the conduct of examination or attempting to do so;
(vii) Inciting or compelling any other candidate or leave the examination room or to disturb/disrupt/boycott the examination;
(viii) Bringing into the Examination Hall/Centre (a) any weapon or (b) any other material objected to by the Invigilator/Centre Superintendent or any other member of the Supervisory Staff;
(ix) Appearing in the examination without being in possession of the Admission Card unless permitted by the Centre Superintendent;
(x) Refusing to be searched by the Invigilator/Centre Superintendent/any other member of the Supervisory Staff/any member of the Flying Squd, or obstructing or hindering such search in the Examination Hall, Verandah, Urinal, etc.
3. Punishment:
A candidate found guilty of Unfair-means or disorderly conduct at or in connection with an examination shall at the discretion of the Syndicate, be punished with one or more of the following. This may even be in addition to the punishment that may have been already awarded by the Principal/Centre Superintendent, under O. 88 or O. 152:
(i) Cancellation of the result of the paper in respect of which he is found to have been guilty; and/or
(ii) Cancellation of the result of the examination for which he was a candidate; and/or
(iii) Debarring the candidate from securing admission to a class and appearing at any future examinations of the University for a stated period; and/or (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (13 of 26) [CW-23177/2018]
(iv) Any other punishment deemed suitable by the Syndicate.
4. Norms of Punishment:
The following norms for award of punishment are laid down:
(a) If a candidate is found guilty of seeking admission to an examination by making a false representation pertaining to his eligibility to appear at the examination, he shall be disqualified from appearing at any examination for a period of two to four years including the present examination.
(b) Where a candidate is found having in his possession or within his reach any material relevant to the syllabus of the examination paper concerned but has not copied from or used it:
(i) If the behaviour of the candidate is satisfactory:
Present examination shall be cancelled, provided that if the material found in possession of the candidate is of insignificant nature the punishment may be relaxed to the extent of cancellation of the examination of that particular paper (theory or practical as the case may be) and he/she will be treated as having obtained 'Zero' mark in that paper with all the consequences to follow. However, if the candidate so desires, he/she will be given the option of appearing in the subsequent whole examination by cancelling the present examination as a whole.
(ii) If the behaviour of the candidate on being caught is unsatisfactory: Present examination shall be cancelled and he shall be further debarred for one subsequent examination if the examination is held once a year or two subsequent examinations if the examination is held twice a year.
Note: If a candidate uses resistence or violence against the invigilator or any other person on examination duty, the punishment may be enhanced according to the gravity of the offence.
(c) Where a candidate is found to have copied from or used the material caught:
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(i) If the behaviour of the candidate on being caught is satisfactory: Present examination shall be cancelled and he shall be further debarred for one subsequent examination, if the examination is held once a year or two subsequent examinations if the examination is held twice a year, provided that if the material found in possession of the candidate and/or the extent of copying done by the candidate is of insignificant nature, the punishment may be relaxed to the extent of cancelling the present examination only.
(ii) if the behaviour of the candidate being caught unsatisfactory: Present examination shall be cancelled on and he shall be further debarred from appearing is at two subsequent examinations if the examination is held once a year or debarred from four subsequent examinations, if the examination is held twice a year.
Notes: 1. If the candidate uses resistence or violence against the invigilator or any person on examination duty or consistently refuses to obey the instructions of the superintendent, the above punishment may be enhanced according to the gravity of the offence.
2. The phrase 'Present examination is cancelled, in (4) (b)
(i) and (ii), (4) (c) (i) and (ii) refers to cancellation of only theory papers and practicals (where held). However, if a candiate has offered dissertation/ viva-voce/field work in lieu of any paper, the same will not be cancelled in case the whole examination is cancelled.
(d) if a candidate is found talking to another candidate or to any unauthorised person inside or outside the examination hall, during the examination hours without the permission of a member of the supervisory staff, his examination in that particular paper may be cancelled.
(e) If a candidate is found reading or possesses some incriminating material relevant to the syllabus of the paper in the Verandah, Urinal etc. his examination in that particular paper or his whole examination depending on the gravity of the offence, shall be cancelled.
(f) If a candidate leaves the examination hall;
(i) Before the expiry of half an hour after the commencement of the examination, and/or (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (15 of 26) [CW-23177/2018]
(ii) Without obtaining the permission of the invigilator; and/or
(iii) Without handing over the answer book to the invigilator; and/or
(iv) Without signing the attendance sheet; his examination in the paper concerned may be cancelled.
(g) If a candidate during the course of practical examination presents to the examiner practical or class work, or note book, which does not belong to him, that particular examination shall be cancelled.
(h) If a candidate,
(i) Leaves the examination hall without handing over his answer book to the invigilator concerned and takes it away with him, or
(ii) Tears it off, or otherwise disposes of his answer-books or any part thereof inside or outside the examination hall, or
(iii) Incites/compels any other candidate to leave the examination hall, or attempts to disturb, or disrupts the conduct of examination or indulges in any kind of activity in the campus of the Examination Centre which is violative of the sanctity, or purpose of the examination, he shall be disqualified from appearing or passing in any University examination for one to three years including the present year of examination, depending upon the nature and gravity of the offence.
(i) If a candidate on being caught by an invigilator, a member of the flying squad or any other authorised member of the supervisory staff, runs away from the examination hall along with the piece of paper/material in his possession or destroys any piece of paper believed to be of doubtful nature by the member of the supervisory staff either by swallowing/ throwing it away, or by any other means, he shall be disqualified from appearing/passing in any University examination for a period upto two years including the present one.
(j) If a candidate is found guilty of;
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(i) smuggling an answer-book in whole or in part inside the examination hall, or
(ii) Taking out or arranging to send outside the examination hall, an answer-book or question paper, in whole or in part, or
(iii) Replacing his answer-book or getting it replaced in whole or in part during or after the examination, or
(iv) Impersonating a candidate or being impersonated by any person, he shall be disqualified from appearing/passing in any University examination for a period of two to three years including the present examination.
Note: A person other than the candidate assisting him in the above shall be liable to such action as may be decided by the Vice-Chancellor/Syndicate.
(k) If a candidate is found guilty of disobeying the instructions of the Invigilator/Centre Superintendent (or any other person authorised by him) or if he occupies a seat other than that allowed to him without permission of the proper authority, the examination of that particular paper may be cancelled.
(l) If a candidate deliberately writes any other candidate's Roll Number on his answer book, he shall be disqualified from appearing/passing any University examination for a period upto two years including the present examination.
(m) When a candidate is found guilty of misconduct/mis- behaviour and /or indiscipline in connection with the examination before, during or after the examination hours, inside or outside the examination centre, the extent of punishment may vary from the cancellation of the present paper to disqualifying him from appearing/passing in any University examination for a period upto three years including the present examination depending upon the nature and gravity of the offence.
(n) If a candidate carries into the examination Hall/Centre any weapon and does not hand-over the same to the invigilator or any other authorised member of the supervisory staff, he shall be disqualified from appearing/passing in any University examination upto two (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (17 of 26) [CW-23177/2018] years including the present one, depending upon the nature and gravity of the offence.
(o) Where a paper or any other material connected with the examination or use of any other unfairmeans is found or detected even after the examination is over, the candidate concerned may be disqualified from appearing/passing in any University examination upto three years including the present one depending upon the nature and gravity of the offence.
(p) Cases of use of unfairmeans or of disorderly conduct not covered under the above categories from (4)(a) to 4(o) or those which, in the opinion of the Committee appointed by the Syndicate, deserve some other punishment, shall be decided by the Syndicate.
(q) When a candidate is found guilty of disobeying the instructions of the Invigilator/Centre Superintendent (or any other person authorities by him) or of deliberately changing his seat with another candidate or writing other candidate's Roll Number on his answer-book or of mis- conduct, indiscipline or mis-behaviour including causing any kind of disturbance for other examinees in the examination hall or for indulging in any activity in the campus of the examination centre which is violative of the sanctity and purpose of the examination, the Centre Superintendent may turn him out of the Centre, cancel his day's examination and also further disqualify him from appearing at the examination in subsequent papers; provided further that in all such cases, the report of each case shall be sent to the University for approval. The Syndicate may, however, according to the gravity of the offence, further enhance the punishment.
5. Procedure for dealing with the cases of Unfair- means and disorderly conduct:
The following shall be the procedure for dealing with the cases of candidates found using or suspected of using Unfair-means or showing disorderly conduct in connection with the examinations:
(i) Where a candidate is suspected of using Unfair-means as defined above, the Invigilator or the Centre Superintendent or any other member of the supervisory staff including the Flying Squad shall search the candidate and/or his belongings. Where any written or printed (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (18 of 26) [CW-23177/2018] material is found in his possession in consequence of the search, the Superintendent of the Examination Centre shall refer the case to the officer appointed by the University for the purpose indicating the nature of Unfair-means used by the candidate.
(ii) As soon as a candidate is suspected, found or reported to have resorted to Unfair-means and the Invigilator/Superintendent or any member of the Flying Squad feels satisfied that Unfair-means have been used, his answer-book shall be seized along with the material recovered and a fresh answer-book given to him to answer the questions of question paper. The answer-book shall be marked as I and II respectively.
(iii) The invigilator/member of the Flying Squad concerned shall generally give his report in writing in the form prescribed by the University (Form No. 39-E). This report shall be brought to the notice of the candidate who shall normally be required to give his explanation in the above form and sign the material caught. This form No. 39-E duly completed alongwith the material recovered duly signed by the candidate, the invigilator-member of the Flying Squad and the Centre Superintendent (as far as possible) will be sent by the Centre Superintendent to the University (to the officer appointed by the University for the purpose by name) for consideration.
(iv) If a candidate refuses to give his statement on the spot and/or refuses to sign the material recovered or leaves the centre without giving his statement or if the candidate is found guilty of showing dis-orderly conduct, his case will be reported by the Centre Superintendent to the University on Form No. 39-E. An intimation notice to this effect (preferably on the prescribed form), will be sent to the candidate under registered cover calling upon him to show cause why action should not be taken against him for using Unfair-means or showing misconduct and asking him to submit/furnish his explanation/reply, if any, directly to the Registrar of the University by registered post with a copy of his reply endorsed to the Centre Superintendent within fourteen days from the date of despatch of the intimation notice from the Centre Superintendent. If the intimation notice due to any reason has not been sent by the Centre Superintendent, it will be sent to the candidate by the University before finally disposing of the case.
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(v) Where the Centre Superintendent refers a case of use of Unfair-means or disorderly conduct to the University, he shall record such evidence as is available in support of the allegations made by the invigilator/member of the Flying Squad or any member of the supervisory staff and after giving his own remarks, he shall send all the relevant material to the-University for further action.
(vi) The University will consult the Head Examiner/Examiner or any other expert appointed by the University, where-ever necessary, and get his report on the prescribed form (Form No. 73-E) regarding the use of Unfair-means.
(vii) All cases of suspected use of Unfair-means or of disorderly conduct reported by the Centre Superintendent or by any other person concerned with the examination including the examiner shall be considered and decided by the Syndicate. The Syndicate may, however, appoint Standing Committee(s) or authorise the Vice-Chancellor to appoint such committee(s) to examine the cases on its behalf and give the recommendations for consideration and approval by the Syndicate.
The Standing Committee may be divided into Sub Committee(s) by the Convener to deal with suspected cases of Unfair-means and disorderly conduct.
(viii) (a) The cases of suspected use of Unfair-means or of disorderly conduct will be considered and decided by the committee in the candidate's absence on the basis of the reports of the invigilator/Centre Superintendent and the statement, if any, made by the candidate in Form No. 39-E and/or the reply statement, if any, received from the candidate in the reply to the notice issued to him by the Centre Superintendent and/or by the University. No further representation or protest from the candidate will be entertained afterwards.
(b) In case a candidate desires to be given a personal hearing and/or if the Standing Committee thinks it necessary, it shall fix a date and time and notify to the candidate by registered post to appear before the Committee for personal bearing. Sending such a notice by registered post to the candidate at the address given by him in his examination application form/Form No. 39-E shall be deemed to be a discharge of the University's liability for serving the notice. No adjournment of the (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (20 of 26) [CW-23177/2018] meeting will ordinarily be granted to the candidate. If considered necessary the Committee may ask the Invigilator/Superintendent or any other member of the Supervisory Staff to be present in the meeting at the time of holding the enquiry.
On the date fixed for hearing which will ordinarily be not less than 14 days from the date of despatch of the notice the Committee shall meet at the notified place on the date and time specified in the said notice for giving personal hearing to the person(s) concerned.
The statement/reply of the candidate will be recorded by the Committee which may also seek and record clarifications or further explanations, if necessary, from the Invigilator/Centre Supdt./any other member of the supervisory staff, who may be present at the time of the enquiry.
(ix) In no case shall the candidate be allowed to be represented by a lawyer or any other person. Also no adjournment of the hearing will be granted to the candidate unless deemed necessary by the Committee. Further, it will not be obligatory for the University to furnish a copy of the incriminating material or any other material recovered from the possession of the candidate. However, the candidate will be shown the incriminating material at the time of hearing if he so desires.
(x) On the basis of the report(s)/statement(s) of Invigilator(s)/Member(s) of the Flying Squad or the supervisory staff, the statement, if any, of the candidate, the remarks of the Centre Superintendent and also the statements recorded at the time of personal hearing, the Committee will record its recommendations regarding the punishment to be awarded to the candidate. If the candidate is absent, the Committee may consider and decide the case in his absence.
(xi) If during the course of enquiry, the Standing Committee, while examining a particular case(s) comes to the conclusion that the candidate(s) resorted to copying from the answerbook(s) of any other candidate(s) or where the committee is of the opinion that such copying could not have been done without the convenience/negligence of the invigilator(s)/ any other member(s) of the supervisory staff, the committee may recommend such disciplinary action as it deems fit against (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (21 of 26) [CW-23177/2018] the invigilator(s) or the member of the supervisory staff after giving him/them an opportunity of personal hearing.
(xii) The Committee may for reasons to be recorded, also recommend to the Vice-Chancellor/Syndicate if any action is desired to be taken against an examiner or any member of the supervisory staff or any other person involved in a case of unfairmenas and disorderly conduct.
(xiii) The said report and recommendations of the Committee shall be placed before the Syndicate which shall be the final authority to take such action as it may think necessary in each case, or before the Vice- Chancellor if authorised to do so on behalf of the Syndicate.
Notes:
(1) If a candidate appearing in uncovered/uncleared subject(s) of paper(s) of a lower examination along with the higher examination is found guilty of use of Unfair-
means in a paper of the lower or the higher examination, his uncovered papers at the lower examination as well as the complete higher examination shall be cancelled and if required under this Ordinance will be further debarred from appearing at the subsequent examination in the same. (2) A candidate can approach a court of Justice for redress, if any, within 90 days from the date of despatch of the decision of the University to the candidate. (3) The records of the cases of Unfairmeans/disorderly conduct may be destroyed after the expiry of six mnoths form the date of despatch of the decision of the University to the candidate.
(4) Special examination, if any, arranged by the University during the period for which a candidate has been punished, shall not be counted as a subsequent examination for the purpose of this ordinance.
(5) Supplementary examinations, wherever held, shall be counted a separate examination for the purpose of this ordinance to deal with the cases of unfairmeans and disorderly conduct.
(6) In M.B.B.S., Ayurveda L.L.B., etc. where two examinations (Main I and II) are held, in a session, they (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (22 of 26) [CW-23177/2018] would be considered as two separate examinations for the purpose of this ordinance.
(7) The period fro which a candidate is debarred will not be counted towards the maximum period laid down in any Ordinance within which a candidate must pass a particular examination failing which his examination would stand cancelled or he would lose status to appear as an ex- student or minimum pass marks shall be taken into account for working out his result.
21. A glance of Ordinance as extracted hereinabove, would reflect that it provides a complete procedure for dealing with the cases of use unfairmeans and disorderly conduct. Ordinance 152(3) provides for punishment where a candidate is found guilty or dis-orderly conduct at or in connection with an examination, who may be punished with one or more of the punishment, as detailed out therein, at the discretion of the Syndicate/BOM.
22. Norms of punishment contemplate that where a candidate is found having in his possession or within his reach any material relevant to the syllabus of the examination paper concerned but has not copied from or used it: the present examination shall be cancelled, provided that if the material found in possession of the candidate is of insignificant nature the punishment may be relaxed to the extent of cancellation of the examination of that particular paper treating the candidate to have 'Zero' mark in that paper with all the consequences to follow. However, if the candidate so desires, he/she will be given the option of appearing in the subsequent whole examination by cancelling the present examination as a whole. This punishment is to be inflicted in the event when the behaviour of the candidate is satisfactory.
23. If the behaviour of the candidate on being caught is unsatisfactory: in that event, the present examination shall be (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (23 of 26) [CW-23177/2018] cancelled further debarring for one subsequent examination if the examination is held once a year or two subsequent examinations if the examination is held twice a year. Thus, under Clause (b) of Ordinance 152(4), it is the behaviour of the candidate, in addition, which is the consideration for inflicting the penalty, where, it is found satisfactory or unsatisfactory.
24. Clause (c) of Ordinance 152(4) deals with a situation where a candidate is found to have copied from or used the material caught and where the behaviour of the candidate on being caught is unsatisfactory: the present examination shall be cancelled and further debarred for one subsequent examination, if the examination is held once a year or two subsequent examinations, if the examination is held twice a year, provided that if the material found in possession of the candidate and/or the extent of copying done by the candidate is of insignificant nature, the punishment may be relaxed to the extent of cancelling the present examination only.
25. Thus, a glance of the Ordinance referred to and relied upon by the learned counsel for the parties, would reflect that it was in the backdrop of Clause (b) of Ordinance 152(4), other candidates have been punished whereas the present case at hand, is a case where Ordinance 152(4)(c) would be attracted.
26. In the case of Shabir Khan (supra), a Coordinate Bench of this Court concluded for review of the quantum of punishment in the factual matrix of that case. Be that as it may, a glance of Ordinance 152(4)(b), would leave no doubt that it is attracted subject to behaviour of the candidate caught with objectionable material, being satisfactory or unsatisfactory, while the candidate is found having in possession or within his reach, any material (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (24 of 26) [CW-23177/2018] relevant to the syllabus of the examination paper concerned but has not copied from or used it. In the case at hand from a glance of on the spot report, made by the Invigilator and the Report of the Subject Expert, leaves no room for any doubt that the objectionable material was recovered from the Pencil Box of the petitioner and she did make use of that material while answering Question No.7(b). Thus, where a candidate is found to have copied from or used the material caught; the case would be covered under Ordinance 152(4)(c) and has also been made subject to behaviour of the candidate being satisfactory/unsatisfactory. The punishment inflicted is one which is provided under Ordinance 152(4)(c)(i) where the behaviour of the candidate on being caught is satisfactory. Hence, the opinion has no application to the factual matrix of the case at hand, which is distinct and distinguishable from the case of Shabir Khan (supra).
27. In the case of Maharashtra State Board of Secondary and Higher Secondary Education (supra), the Apex Court of the land, in no uncertain terms observed that the Notification of the Standing Committee would not vitiate for reasons not recorded when the Committee agreed that the report of the Enquiry Officer. The Supreme Court further observed that once the evidence justified the findings it was not open for the High Court under Article 226 of the Constitution to itself evaluate the evidence and to interfere with the findings and quash the impugned notification. Here, it will be profitable to take note of the text of para 24 and 40, which reads thus:
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24. The next contention that the notification is vitiated for the reasons that the Standing Committee itself did not record any reason in support of its conclusion that the examinees or the parents or the guardians are parties to the fabrication cannot be sustained for the reason that the regulation itself postulates that if the Committee disagrees with the Inquiry Officer then only it is obligatory to record reasons. Since the Committee agreed with the report, there is no need, on their part, to record the reasons. The impugned notification, therefore, is not vitiated by violation of the rules of natural justice.
40.We have no hesitation to conclude that when the evidence justified the examination Standing Committee to record the finding that the examinees, parents or guardians are parties to the fabrication, it is not open to the High Court under Article 225 to itself evaluate the evidence and to interfere with the finding and to quash the impugned notification. This Court under Article 136 has to correct the illegalities committed by the High Court when it exceeded its supervisory jurisdiction under Article 226.
In view of the fair attitude adopted by the counsel for the Board, it is not necessary to go into the question of quantum of punishment.
28. In the case of Director (studies), Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh and Ors.(supra); on a survey of earlier opinions, the Apex Court of the land reiterated that High Courts should not ordinarily, interfere with the functioning and orders of the educational authorities unless there is a clear violation of some statutory rule or legal principle emphasizing upon purity and strict discipline in the examinations of educational institutions. The Supreme Court stressed that this is necessary for overall progress of the nation. It was further held that mere possession of slip during the course of examination was a mal- practice irrespective of the fact that whether slip was not actually (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) (26 of 26) [CW-23177/2018] used. It will be profitable to take note of the text of para 27 of the case (supra), which reads thus:
"27. Before parting with this case, we would like to refer to the decisions of this Court which has repeatedly held that the High Court should not ordinarily interfere with the orders passed in educational matters by domestic tribunals set up by educational institutions vide Board of High School and Intermediate Education vs. Bagleshwar Prasad (vide AIR para 12), J.P.Kulshrestha (Dr.) v. Allahabad University (vide SCC para 17:AIR para 17), Rajendra Prasad Mathur V. Karnataka University (vide SCC para 7: AIR para 7). We wish to reiterate the view taken in the above decisions and further state that the High Courts should not ordinarily interfere with the functioning and orders of the educational authorities unless there is clear violation of some statutory rule or legal principle. Also there must be strict purity in the examination of educational institutions and no sympathy or leniency should be show to candidates who resort to Unfair-means in the examinations."
29. Applying the principles deducible from the opinions aforesaid to the factual matrix of the case at hand, it is evident that the micro-zerox of the copy of the printed material used by the petitioner was recovered from her pencil box and she did make use of the material as has been reported by the subject expert, which is fortified from the answer script with reference to question No.7(b).
30. For the reasons and discussions aforesaid and in view of the conspicuous factual matrix of the case at hand, the writ application is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed.
Ordered accordingly.
(VEERENDR SINGH SIRADHANA),J Pcg/96 (D.B. SAW/313/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 11:51:45 PM) Powered by TCPDF (www.tcpdf.org)