Delhi High Court - Orders
Rinisha vs N.C.T. Of Delhi And Ors on 14 January, 2019
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 12462/2018
RINISHA ..... Petitioner
Through: Ms. Ashima Mandla and
Mr. Abhishek Arora, Advs.
versus
N.C.T. OF DELHI AND ORS. ..... Respondents
Through: Mr. Amit Bansal and
Ms. Seema Dolo, Advs. for R-2
&3
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 14.01.2019 CM No. 48377/2018 (exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 12462/2018
3. This writ petition involves a student, who during the course of her undertaking the fourth semester examination for the LL.B. Programme conducted by the Campus Law Centre, University of Delhi, was found in possession of an Apple Watch, which resulted in the issuance, to her, of a show cause notice dated 24 th May, 2018, which reads thus :
" UNIVERSITY OF DELHI
To,
Ref.No. Exam.V/UFM/2018/147
Delhi, the 24/05/2018
Rinisha,
D/o Bharat Ram Meena
2157/2A/2
Guru Arjun Nagar
Delhi-110008.
SHOW CAUSE NOTICE
1. Report of the Superintendent Examination Centre:
The Superintendent/Coordinator/Central valuation Centre of the Examination Centre where Rinisha had taken examination in Paper No.LB-402 of LLB-IV Term Examination has reported that during the course of examination held on 16.5.2018 the said candidate had resorted to the use of unfairmeans/disorderly conduct. The text of the report sent to this office is as follows :-
Caught digital watch
2. Statement by the candidate at the time of the incident: (If given).
It has also been reported that as required under the rules, the said candidate was asked to give a written statement at the time of the incident which he/she, gave/did not give.
The statement (if given) has been received in this office in which the candidate had:
"Given written statement"
3. Charge-Sheet:-
The attention of the candidate is invited to Ordinance X-A of the University of Delhi concerning the punishment awarded for use of unfairmeans/disorderly conduct at the examination. He had been cautioned through the guidelines, set out under Ordinance X-A of University of Delhi and through the announcement made at the start of the paper that use of unfairmeans/disorderly conduct was an offence under the provisions of Ordinance X-A of the University. It had also been stated that the minimum punishment for possessing unauthorized material during the course of examination was the cancellation of the entire examination (even though the material recovered has not been used during the course of the examination).
In view of the specific report of the Superintendent of the Examination Centre, Coordinator of the Central Evaluation Centre, the said candidate is now required to show cause in writing as to why disciplinary action as provided under Ordinance X-A of the University should not be taken against him/her. His/her written reply should reach the undersigned within two weeks of issue of this show cause notice failing which it will be presumed that he/she has accepted the charge conveyed to him/her and in such an event the University shall be inclined to take a decision on the basis of the facts available on record.
On receipt of the written reply or at the expiry of the above said period of tow weeks, the case will be assigned to the Examination Disciplinary Committee and will be processed in accordance with the rules of the University. The final decision of the Executive Council taken in his/her case will be communicated to him/her in due course. The Examination Disciplinary Committee which would be assigned the case could also consider giving the candidate a personal hearing on a date and time so fixed by it provided that the candidate asks for it in writing.
The candidate is required to give a reference to the case number and his roll number while sending a reply to this communication or addressing any communication to the University in this behalf.
Deputy Registrar (Secrecy)"
4. The petitioner responded, to the aforementioned show cause notice vide a communication dated 6th June, 2018, addressed to the Deputy Registrar (Secrecy) in the office of the Dean (Examinations), University of Delhi, in which the petitioner adopted a stand that the watch could not have been used, by her, as the watch had been kept by her only for referring to the time and in any case it was not possible for her to use it for any unfair means as there was no internet connectivity in the Campus Law Centre. Pursuant to the aforementioned reply, the petitioner was given an opportunity of hearing, pursuant to which the impugned memorandum dated 9 th October, 2018, was issued, which reads thus :
J"
"UNIVERSITY OF DELHI EXAMINATION BRANCH-V DELHI -110007 Case No.: 12 Ref. No.: V/UFM/2018/368 Delhi, the 03/08/2018 Roll No.: 160499 Memorandum * This is to inform you that you have to appear before the Dy.Regisatrar (secrecy) on 13th August -2018 Monday at 10.30 Am in the Room No. 109, First Floor Examination Building, North Campus, University of Delhi-Delhi -110007, In connection with your unfair means case (UFM). You should note that you have to bring the PIN of your mobile alongwith charge of your mobile digital watch which was caught at the time of Examination held in May/ June -2018.
No T.A would be admissible Section Officer Exam Branch-V 011-27667680 Rinisha D/0 Bharat Ram Meena ..
2157/2A/2 Guru Arjun Nagar Delhi-11000"
5. Clause 1(d)(iii) of Ordinance X-A of the Delhi University Ordinance, which was invoked, against the petitioner, includes, within the ambit of the expression "use of dishonest or unfair means in the examination", "carrying into the examination room, any book, paper, notes or other material whatsoever likely to be used directly or indirectly by the candidate in connection with the examination". I may note here, that the words, "likely to be used" make this clause practically impossible to implement, as it would be very difficult to discern, in any particular case, whether the material found less "likely to be used" by the candidate in the examination or not.
6. It appears that, in order to lend a semblance of clarity to this clause, guidelines have been issued by the University of Delhi in this regard. These guidelines categorises offences committed by the candidates into six categories viz Categories A, B, C, D, E and F. Of these, Category B(i), for which the prescribed punishment is "cancellation of the entire examination" covers "B (i) keeping in possession papers, books or notes or is found having written notes on the admit card, old question paper or on any part of his/her body or table or desk or is found in possession of any material with notes written on them or pgorammable calculator, and which could be helpful or of assistance to him/her in answering the paper but the candidate has not attempted to take any assistance himself/herself or not given any assistance to any other candidate from such material", whereas sub-clauses (i) and (viii) of Category C for which the prescribed punishment (which has been imposed in the present case on the petitioner) is "cancellation of the entire examination taken by the candidate during the year and further debarring him/her from appearing in any examination of the University within a span of one year/12 months) read thus :
"(i). Keeping in possession papers, books or notes or is found having written notes on the admit card, old question paper or on any part of the clothes worn by him/her or on any part of his/her body or table or is found in possession of any material with notes written on them or programmable calculator, and if the candidate has made use of such material himself/herself or given assistance thereof to any other candidate during the examination.
.....
(viii) Keeping in possession any electronic device (including mobile phone, smart watch, blue tooth, micro-
scanner, micro-phone, micro-camera, micro-speaker, memory based modules, Wi-Fi enable modules, etc.), and if the candidate has made use of such device himself/herself or given assistance thereof to any other candidate during the examination In such cases of using electronic device as unfair mean (including online/wireless text/audio material, etc.) by the candidate, the statement of invigilator/superintendent of the examination alone will be considered as evidence."
7. A reading of the first part of the charge sheet, constituting para 3 of the aforementioned show cause notice dated 24th May, 2018 would, prima facie, show that the clause that has been invoked against the petitioner is only the clause relating to possession of unauthorised material during the course of examination, without usage thereof. This is underscored by the fact that the punishment referred to in the said paragraph is only cancellation of the entire examination and not debarment for further years.
8. Learned counsel for the petitioner has pointed out that debarment for future years is covered by part C of the aforementioned guidelines whereas cancellation of the examination is covered by part B. She submits that, at worst, it was only the fourth semester of the petitioner which could have been cancelled and nothing more.
9. Prima facie therefore, it would appear that the punishment that has been imposed on the petitioner invokes a clause which is different from that in the show cause notice.
10. Mr. Amit Bansal seeks a short adjournment to examine this aspect.
11. Renotify on 17th January, 2019 as part-heard for disposal at the end of the board.
C.HARI SHANKAR, J JANUARY 14, 2019/kr