Gujarat High Court
Jadeja Gopalsinh Balwantsinh vs State Of Gujarat & 3 on 25 September, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/11464/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11464 of 2017
TO
SPECIAL CIVIL APPLICATION NO. 11465 of 2017
==========================================================
JADEJA GOPALSINH BALWANTSINH....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) ========================================================== Appearance:
MR BIPIN I MEHTA, ADVOCATE for the Petitioner(s) No. 1 MR VICKY B MEHTA, ADVOCATE for the Petitioner(s) No. 1 ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1 MR NIRAJ ASHAR, AGP for the Respondent(s) No. 1 MR DIPEN DESAI, ADVOCATE for the Respondent(s) No. 3 MR MANISH S SHAH, ADVOCATE for the Respondent(s) No. 4 NOTICE SERVED BY DS for the Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 25/09/2017 COMMON CAV ORDER
1. Heard learned advocate Mr. Bipin J. Mehta with learned advocate Mr. Vicky B. Mehta for the petitioners, learned AGP Mr. Niraj Ashar for respondent - State, learned advocate Mr. Dipan Desai for respondent No.3 and learned advocate Mr. Manish Shah for respondent No.4. Respondent No.2 - Gujarat University, though duly served has chosen not to appear and to oppose this petition and, therefore, there is reason to believe that they have nothing to say on merits so far as pleadings and allegations in the petition are concerned and thereby they have no objection if reliefs sought for are granted.Page 1 of 24
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2. Both the petitioners are having same facts and pleadings so also both the petitioners are against same respondents and similar issue is raised in both the petition, therefore, they are heard together and this common order is passed in both the matters.
3. Petitioners have sought directions of this Court for quashing and setting aside the order dated 10.03.2017 by the respondent No.3 whereby respondent No.3 Gujarat Technological University has passed an order imposing a punishment for unfair means, during winter examination conducted on 22.11.2016. By such impugned order, the respondent No.3 has conveyed the petitioner that he had been reported to be involved in mass copying, as all answers are exactly the same word to word, specifically question Nos. 1, 2, 3 and 4 in their answer book for the subject Theory of Machine and, therefore, final penalty of level 2 was imposed as mentioned in Notification No. 34/2013 (Revised) dated 15.10.2013. Accordingly, result of all the subjects of that semester examination had been cancelled. Thus petitioners have to appear in all the examination of that semester again for clearing their degree course. While challenging such order, the petitioners have disclosed their basic information which is to the effect that they have commenced their studies of Diploma in Mechanical Engineering in the year 2011 with respondent No.4 college, which is recast by respondent No.3 University. Amongst which in 4th Semester, petitioners have failed in two subjects i.e. Thermal Engineering and Theory of Machine, though they have cleared rest of the subjects. The respondent No.3 has conducted the regular examination as well as examination of such students who have failed in certain subjects like present petitioners. One such examination was conducted on 22.11.2016 for the students like present petitioners who have failed in certain subjects. Approximately 100 students including petitioners have appeared in Page 2 of 24 HC-NIC Page 2 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER said examination on 22.11.2016 for the subject Theory of Machine.
3.1 Unfortunately, all the students who have appeared in such examination were issued a show cause notice alleging that all of them have committed unfair practice during examination by involving themselves in mass copying and, therefore, they were called upon to remain present on 13.01.2017 before the committee constituted by the respondents.
3.2 Whereas petitioners have submitted that they have never caught red handed and no material was found at the relevant time of examination by squad but notice was issued to them also with all other students of the respondent No.4 college who had appeared in winter examination conducted on 22.11.2016. The petitioners were surprised on receipt of such notice and thereafter upon inquiry came to know that earlier respondent No.3 had issued notice alleging mass copying to 25 students and since they have not protested such allegation, respondents have issued notice to remaining students. However, though notice dated 21.01.2017 is received by the petitioner on 28.01.2017 to remain present before 31.01.2017 with an allegation that petitioners were involved in mass copying, before petitioners received such notice and before appearance before respondent No.3, on 25.01.2017 petitioners' results was declared on internet confirming that they have passed both the subjects. Therefore, it is surprising situation in as much as on one hand respondent No.3 has disclosed the petitioners as pass in both the subjects and on other hand, they were called upon to remain present before respondent No.3 on 31.01.2017 with allegation that they were involved in mass copying and such communication was received by the petitioners only after declaration of their result on internet. However, pursuant to intimation to remain present personally, petitioners have appeared Page 3 of 24 HC-NIC Page 3 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER before respondent No.3 and submitted that they have not done anything wrong and charges of mass copying are false. Thereupon petitioners were informed by the committee of respondent No.3 that committee will take the decision based upon the submission of the petitioners.
3.3 Thereafter on 07.02.2017, respondent No.3 has granted provisional certificates in favour of the petitioners declaring that petitioners have fulfilled all the prescribed academic requirement for the Diploma in Mechanical Engineering. It is clear and certain that respondent No.3 has not communicated their decision with regard to the show cause notice dated 21.01.2017 and issued certificate in favour of petitioners.
3.4 However, almost a month thereafter, petitioners have received impugned order dated 10.03.2017 from respondent No.3 confirming the punishment for unfair means. Therefore, petitioners have submitted a representation on 17.03.2017 that pursuant to provisional cirtificate petitioner has already joined a service with private company and that before passing impugned order of penalty, an opportunity of hearing was not given by the committee and, therefore, requested the respondent No.3 to consider that provisional certificates dated 07.02.2017 as legal and no further proceedings are required. However, when respondents have failed to take decision pursuant to such representation dated 17.02.2017 so also 03.04.201, the petitioners have personally visited the respondent No.3 when it was conveyed to the petitioners that for all the students results were cancelled, respondent No.3 has decided to take remedial examination on 27.04.2017. However, when list of such examination was declared by respondent No.3 names of petitioners were missing in such list and, therefore, chance was not given to the petitioners to appear in the Page 4 of 24 HC-NIC Page 4 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER examination which is held on 27.04.2017. It is submitted by the petitioners that at the relevant time, though petitioners may appear in such remedial examination and though their career may subject to result of such examination, when respondents have omitted their names for such examination so also without assigning any reason and without offering any opportunity to represent their case that why they have been punished and why they were not permitted to appear in such second examination on 27.04.2017, there is reason to believe that respondents have consider the factual details as per representation and on 07.02.2017 issued provisional certificate confirming that petitioners have cleared a diploma course and thereby effect of show cause notice has came to an end. However, by impugned order, surprisingly respondent No.4 college has called upon the petitioners to return back the provisional certificates and deposit the same back with respondent No.3. Hence petitioners have no option but to file present petition, wherein in addition to direction to quash the impugned order dated 10.03.2017, petitioners have also prayed for further direction to declare that petitioner is eligible and entitle to pursue studies by filling up the form in the course of Degree in Mechanical Engineering pursuant to certificate dated 07.02.2017, issued by the respondent No.3, though such certificate is a provisional certificate. It is further prayed by the petitioners to stay the execution, implementation and execution of impugned order passed by respondent No.3 and to restrain the respondents from taking any actions for getting back the provisional certificate dated 07.12.2017.
3.5 The petitioners have also submitted that on 18.04.2017 the original mark sheet was also issued in favour of the petitioner and provided to them declaring them pass in both the subjects, which is prepared on 25.01.2017 i.e. after issuance of show cause notice and well before imposing punishment by impugned order. It is also Page 5 of 24 HC-NIC Page 5 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER submitted that last date for filling up the form for remedial examination was 30.03.2017 when petitioners were not permitted to fill up the form and before the date of such examination being 27.04.2017, the mark sheet disclosing the petitioners as pass dated 25.01.2017 was released on 18.04.2017. Therefore, there is reason to believe that respondent No.3 has let go the show cause notice and to that extent issuance of impugned order is unwarranted.
4. However, when respondent No.3 has resisted the petition in detail and with all the allegations, one has to look into issue of mass copying also and decide the issue that whether petitioners are entitle to stay the execution, implementation and operation of the order dated 10.03.2017.
5. Respondent No.3 has filed an affidavit in reply on 31.07.2017 inter alia contending that this Court should not entertain the petition under Article 226 of the Constitution of India challenging the orders passed by examining authority and decision taken by the expert in the field and should not seat in appeal in decision taken on the basis of the evidence by such experts, contending that purity in examination is to be protected and in order to maintain high standards in examination, the students who indulge in unfair means are required to be dealt with heavy hands. It is further submitted that there is sufficient material with them to show that petitioners have indulge in unfair means and, therefore, impugned order by the respondents is absolutely justified and, therefore, no interference may be made. It is further contended that when out of 100 students, only two students have challenged the said order it becomes clear that the order is just and proper when 98 students have accepted it.
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5.1 It is further submitted that all the students have appeared in examination which was conducted in K. P. Thakkar Institute of Technology, Viramgar and examiner to whom the answer sheet were sent for verification, has found that 25 students who set in examination in the same college have written the answers in same pattern and almost all answers are exactly the same. Therefore, examiner had reported such fact to the controller of examination to verify the same, who had in turn sent it to the Zonal Officer. It is further submitted that thereafter the University has sought opinion of subject experts by sending answer books of all 25 students to three different subject experts, who had vide their reports dated 17.12.2016, 19.12.3016 and 20.12.2016 conveyed that all the 25 students have indulged in mass copying. Thereupon respondent No.3 has decided to initiate the proceedings of unfair means and matter was referred to unfair means committee for imposing punishment. However, though it is stated that total 100 students set in one center were involved in unfair means, it is not clarified that whether answer books of remaining 75 students which includes answer-sheets of present petitioners were referred to expert committee or not, though there is decision to take action against all 100 students under presumption that all of them have indulged into mass copying and thereafter notice was issued to all of them. However, thereafter committee of experts under the Chairmanship of one Shri P. D. Solanki, Principal of GEC, Godhara was constituted, consisting of six subject experts, which has ultimately held on 01.12.2017 that all the 100 students have involved into mass copying. It is further submitted that said committee on verification of cases of 100 students opined that someone has dictated the answers in the class and the students have written those answers and that there is word to word copy in all answers and that all the answers are found in the book of Theory of Machine by Atul Prakashan (Gujarati Addition). Detail analysis made by such committee is also produced with their report Page 7 of 24 HC-NIC Page 7 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER at Annexure R6 and R7. It is further submitted that such report was scrutinized by high level committee of the University before taking decision on 20.02.2017 which is recorded in the meeting of the University. The perusal of such documents and as submitted by respondent now makes it clear that pursuant to such scrutiny of some 100 answer sheets, the respondents have taken a decision that all 100 students have copied at least one or more questions so committee unanimously imposed penalty of level-2 to all the 100 students and final penalty of Rs.1000/- per student which is to be born by the college and to forfeit remuneration of center in charge and other exam related staff for exam related duties and debarring them for two years.
5.2 However, there is not a single line in reply so far as factual details submitted by the petitioners which is recorded in first part of this order regarding declaration of result of the petitioners and issuance of provisional certificate and mark-sheet in favour of the petitioners, so also not allowing them to appear in remedial examination dated 27.04.2017 is concerned. Therefore, there is reason to believe that respondents have admitted such pleadings and allegations. Therefore, though factually, respondents have no defence to put forward against admitted position regarding declaration of result of the petitioners so also issuance of mark- sheet and certificate in favour of the petitioners, respondents have mainly relying upon several legal pronouncements emphasizing that when expert committee has taken a decision that there is mass copying then Court should not entertain such petitions.
5.3 When respondents are relying upon report of their experts before discussing citations by the respondents, if we peruse the affidavit and the decision by the committee then also it becomes clear that there is no specific and concrete decision by any of the Page 8 of 24 HC-NIC Page 8 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER committee, when it is stated that almost all answers are word to word similar. Therefore, the use of word "almost" makes it clear that all answers are not word to word similar, but there may be some answers which may be same even word to word in different answer sheets by different students. So far as constitution of committee is concerned, it is categorically disclosed that members of the committee is by different subject experts and, therefore, question paper of one subject is to be examined and that too for mass copying, then expert of different subjects are not material and, therefore, only because committee is constituted by expert of different subjects, it cannot be said that their decision is proper and not subject to scrutiny. Even such committee by different experts have in their conclusion stated that "it seems that some one has dictated answers in class." Thereby it is a presumption moreover, it is also stated that most answers seems to be copied from the book on the subject - Theory of Machine by Atul Prakashan (Gujarati Edition). For all such reasons when respondents have imposed penalty to the college also the overall reading of the available documents gives a clear impression that practically there seems to be a dispute between the college and the University and that dispute has affected the students adversely by impugned order.
6. I have reason to say so because even first committee of the examination has also used word "almost", not making it clear that all the answers are similarly copied. However, to realize the real dispute the Court has called for few answer sheet and examined it thoroughly. On scrutiny of some answer-sheet, it becomes clear that, in fact, subject of theory of machine is purely and absolutely a subject of science, where there is least chance of deviation in answers, in any manner, whatsoever wherein not 100 but even if 1000 students were given particular question, in that case, if Page 9 of 24 HC-NIC Page 9 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER particular students have given a correct answer then such answers would seems to be copied by them, because there cannot be a different answers to question on science and that too when it is related to question regarding machines. It is quite clear that factually answers to certain facts would be similar and if students have studied the same book having same example then for particular question when their answer is correct, their examples would be similar and, therefore, it cannot be said that whoever has given correct answer has copied the answer from somebody else even if it is tallying to some extent and explained by same example. 1 + 1 in maths is equal to 2 and if such answer is there by more student, then it cannot be said that it must be copied. Similarly in the law if some one is writing about best judgment in Constitution, it is Keshavanand Bharti and the best judgment of anticipatory bail may be termed as Sanjay .......... judgment. Similarly in science subject like Theory of Machine when characteristic of particular machine is common and when all the students have studied from same book if they have given the same answers with same example then it cannot be said that they have copied the answers from each other or as alleged that somebody has dictated and they have written it in answer sheet. Such later part of allegations makes a scenario altogether different, since such allegations are not only against students but they are against college management, wherein examination was held. Thereby practically it was a fallesy on the part of the university to held that examiner and controller had committed a wrong so as to see that all the students may copied the same answerers word to word and thereupon they may clear the examination. There is no clarity that what could be the interest of the college to allow such mass copying.
6.1 Whereas in the present case, practically this aspect of mass copying is practically side tracked when petitioner's pleadings, Page 10 of 24 HC-NIC Page 10 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER which are disclosed herein above, remains unanswered, whereby it is clear and certain that irrespective of punishment of an number of students, result of present petitioners was not only disclosed but certificate was issued and their names were not included in the list of students who has to appear in remedial examination. Thereby, there is reason to believe that respondents have considered that petitioners have not involved in mass copying as alleged. However, it seems that while punishing this college and while issuing the show cause notice and punishing other students, punishment letter in the name of the petitioners has also been issued but now respondent does not want to admit their mistake.
7. In addition to what is stated herein above, when respondent No.3 is relying following decisions, they require consideration before any specific determination.
(1)AIR 1966 SC 875 between Board of High School & Inter Mediate Education, Uttar Pradesh vs. Bagleshwar Prasad, wherein reliance was placed on para 10 to 12. The perusal of such paragraphs makes it clear that, the factual details of sitting of students and report of the committee based upon such factual details is discussed. However, if we peruse it properly it becomes clear that though it is held by the Honourable Supreme Court that in dealing with the validity of the orders passed by the University under Article 226 of the Constitution of India the High Court is not sitting in appeal over such decision in question, wherein its jurisdiction is limited; even while saying so it is also stated in the same sentence that "it is true that if the impugned order is not supported by any evidence, the High Court would be justified to quash that order." It is further stated that such conclusion must be reached after considering the question as to whether probability and circumstantial evidence do not Page 11 of 24 HC-NIC Page 11 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER justify the said conclusion. Therefore, though it is stated that the High Court is not sitting in appeal over the decision in question, it is also stated that if such decision is without evidence, then the High Court can quash such order and for verification that whether there is evidence or not, the question as to whether probabilities and circumstantial evidence justified such conclusion needs to be considered.
Therefore, practically the High Court has to scrutinize that whether there is probabilities and circumstantial evidence for such conclusion or not. So far as answers held by domestic tribunal in such cases are concerned though it is observed that it must be fair and students against whom charges are framed must be given an adequate opportunity to defend themselves in such inquiries, it is also made clear that the tribunal must scrupulously follow rules of natural justice though all consideration which cover criminal trial may not be reasonable to import in such inquiries. Therefore, when decision is taken in a cited case practically it is based upon the observations that in that case no animus is suggested and no mala fide has been pleaded and though inquiry was fair and students have an opportunity to make their case. If that being so, the Honourable Supreme Court has held that the High Court is not justified in interference with the order. Therefore, there is no substance by the respondents that in such cases the High Court should not interfere in any manner whatsoever and petition should not be entertained and should be summarily rejected. So far as consideration of probabilities and circumstantial evidence for coming to the conclusion that such evidence is sufficient to arrived at conclusion as per the impugned order in the present case, now there is requirement to scrutinize entire evidence. However, at this stage, I have to avoid such exercise since at this stage this petition is not to be decided finally and, Page 12 of 24 HC-NIC Page 12 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER therefore, though I am restricting myself to convey anything on available evidence, it is quite clear and certain that when respondents have relied upon the report of the experts committee consisting experts of different subject and petitioners were only asked to explain their case and thereby there is no clarity that whether they were allowed to prove their innocence, prima facie it seems that there is need to scrutinize probability and circumstantial evidence to justify the occlusion as per the impugned order. If it is so, matter requires consideration and hence it needs to be admitted and till then when petitioners are already issued mark-sheet and provisional certificate and based upon which when they are serving in the private company for earning their livelihood, there is also case to grant interim relief to stay the execution and implementation of impugned order.
(2)1992 (2) GLH 140 between Controller of Examinations and G. S. Sunder & Anr., wherein also respondents are relaying upon the observations in para 10 to 12. In such paragraphs it is observed that interference by the Court in every case may lead to unhappy results making the system of examination a farce. But so far as factual details are concerned, it is the case of systematic fraud and more particularly when there is admission to that effect by the concern students because it is categorically observed in such judgment that the student has admitted his mistake while giving a statement and, therefore, it was observed that there is no case of violation of principal of natural justice when student has admitted his guilt. Therefore, in presence of evidence of fraud and in absence of admitting the guilt by the present petitioner though because of such position, it was held that petitioners were not entitled to appropriate relief if otherwise, they are so entitle. Therefore, this judgment will not help the respondents to get rid of present petition at such Page 13 of 24 HC-NIC Page 13 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER admission stage.
(3)2003 (9) SCC 237 between Union Public Service Commission and Jagannath Mishra, wherein respondents are relying upon para 4 and 5. The perusal of referred para makes it clear that what is done by this Court by calling upon few original answer papers for scrutiny is justified, in as much as, even the Honourable Supreme Court has carried out such exercise in such reported case. Thereafter a decision was based upon the conclusion arrived at by the Honourable Supreme Court after careful scrutiny of answer papers when there is something against students/candidates in examination. However, such observations also in a form of presumption when it is stated that it would be difficult to get direct evidence so long as an inquiry is held to be fair and it affords the candidate adequate opportunity to defend himself, the matter should not ordinarily be examined by the Courts with the same strictness as applicable to criminal charges. Therefore, though it is settled legal position that if any one is found to be adopting any unfairness in competitive examination he has to bear the consequence for the same, it is also stated that findings must be based upon the probabilities and circumstantial evidence. Therefore, when the Honourable Supreme Court has observed that since we ourselves have examined two question paper and answer- sheets, it would not have been possible to answer hs question paper and the manner in which he has answered, who was sitting just behind the respondent. Based upon such factual position it was held that there is no justification to interfere with the conclusion of UPSC, as the decision is based upon the available material ant the ultimate conclusion of UPSC cannot be held to be a conclusion of an unreasonable man so as to be interfered with by a Court of law, as contended by the respondents that Court has no justification or authority to Page 14 of 24 HC-NIC Page 14 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER entertain such petition or that once education department has taken a decision the Court should not interfere with in such decision. Therefore, there is need to scrutinize the evidence which is to some extent done at this stage and as already disclosed herein above, it cannot be said that there is circumstantial evidence or probable evidence to confirm that petitioners must have enter into unfair means in the form of mass copying for the simple reason that answers to the question of science are similar, so also in technical examples, if syllabus book is common then examples by all the candidates may be common. It is different thing if examination is at the level of doctorate qualification. Therefore though rest of the observations are to be accepted as a settled legal position, in absence of conclusive evidence it cannot be said that petitions are not maintainable or that petitioners are not entitled to any relief including interim relief as prayed for. It cannot be ignored that though the Honourable Supreme Court has not interfered with the conclusion regarding unfair means, the punishment was interfered with and reduced. Therefore, this judgment will not help the respondents to get rid of present petition at such admission stage.
(4)2009 (1) SCC 59 between Director (Studies) and Vaibhav Singh Chauhan, wherein respondents are relying upon para 24 and 33 emphasizing that in view of such judgment the High Court should not interfere with the functioning and orders of the educational authorities. However, respondents have failed to read full line which confirms that even while making such decision, the Honourable Supreme Court has categorically added in the same line that "Unless there is clear violation of some statutory rule or legal principle." So far as legal principle is concerned, the previous judgment makes it clear that there Page 15 of 24 HC-NIC Page 15 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER must be evidence and such evidence needs to be scrutinized and that principle of natural justice needs to be followed whereby student/candidate must be called upon and offer a reasonable opportunity to defend himself. Whereas in cited case the factual scenario was altogether different since a cheat/piece of papers contains the material pertaining to examination in question was found from the candidate and, therefore, it was held that it amounts to mal practice. Therefore, when there is difference between direct evidence and circumstantial evidence and thereby when cited case is based upon the direct evidence and other circumstantial evidence is only for punishment, and when it is clear that in present case there is no direct evidence at all to confirm the mal practice in the form of mass copying though it is alleged by the respondents, now probabilities and circumstantial evidence are to be looked into, so as to consider it as a sufficient evidence for harsh punishment needs to be scrutinized and, therefore, only because of such cited case, petition cannot be summarily dismissed as submitted by the respondents. Therefore, this judgment will not help the respondents to get rid of present petition at such admission stage.
(5) 2013 (5) GLR 4523 between Thummar Vishal G. and State of Gujarat, wherein respondents are relying upon para 10 to 21. The scrutiny of such paragraphs now raise one more issue in as much as, it was held that even if report of examination as well as unfair means committee would not be given to the students, it would be satisfaction of the Court to consider that an opportunity given to the students were adequate and sufficient or not and if the Court is satisfied that reasonable opportunity was given then the Court would not interfere. Thereby in any case even this decision also does not confirm that there should not be a scrutiny of the Page 16 of 24 HC-NIC Page 16 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER evidence so as to verify that whether evidence confirms a decision based upon the probability and circumstantial evidence or not for arriving at its conclusion, the division bench of this High Court has relied upon the previous judgments which are disclosed herein above and, therefore, no further discussion is necessary except to confirm that only because of decision by the expert committee in absence of proper scrutiny, it cannot be said that whatever is done by the expert committee is accepted as gospel truth. It cannot be ignored that even after issuance of show cause notice respondent had released the mark sheet and certificate in favour of the petitioners and, therefore, practically there are estopped from proceeding further in the so called inquiry where no reasonable opportunity has been offered to the petitioners to defend themselves. Therefore, this judgment will not help the respondents to get rid of present petition at such admission stage.
(6)AIR 2016 SC 2865 between Nidhi Kaim and State of Madhya Pradesh, wherein learned advocate for the respondent is relying upon para 34 of the judgment. On scrutiny of such paragraph on the contrary makes it clear that after analyzing and disclosing factual and legal position while recording principle that is emerging from such analysis, it is still stated that "Normally, the rule of anudi alteram partem must be scrupulously followed in the cases of the cancellation of the examinations of students on the ground that they had resorted to unfair means (copying) at the examination." It is needless to say that therefore the principle that no person should be judged without a fair hearing and thereby such Latin phrase means "listen to the other-side" is to be followed even in such cases of mass copying. Though it is stated that above principle is not applicable to the cases where unfair means is adopted by Page 17 of 24 HC-NIC Page 17 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER huge number of students and also to other situation where either examination process is vitiated or the reasons beyond the control of both students and examining body, it would be unfair or impracticable to continue the examination process and to insist upon the compliance of audi ultrum rule. Therefore, in any case, scrutiny is necessary which can be done at the time of final hearing of the case.
(7)Judgment dated 14.09.2016 in Special Civil Application No.11329 of 2015 between Mauleshkumar Bahnubhai Patel and Gujarat Technological University, wherein respondents are relying upon para 6.4. The Co- Ordinate bench of this High Court has simply recollected the legal principal which is discussed herein above. But if we peruse the entire judgment it becomes clear that in fact 9 unclaimed blank answer sheets of engineering were found below the over bridge opposite Khatodara sub-jail. Pursuant to which when inquiry was carried out, because of registration of FIR being C. R. No.270 of 2014, it was further revealed that a blank answer book of one Mr. Karan Mehulbhai Desai who might have appeared in concern examination was recovered by police from one Mr. Vishal Dineshbhai Patel, which goes to show that those petitioners have probably stallen the blank answer sheet from the examination centre and tried to fill up it at home for placing it in relevant record but caught. Therefore, it is the case of direct evidence and, therefore whatever is decided in that case may not be material in the present case. Since it is quite clear that there is no such allegation or direct evidence in the present case.
(8) Order dated 30.03.2017 in Letters Patent Appeal No. 126of 2017 between Karan Mehulbhai Desai and State of Gujarat, wherein respondent is relying upon para 7. However, though this Letters Patent Appeal is not against the Page 18 of 24 HC-NIC Page 18 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER previous citation being judgment in case of Mauleshkumar Patel (supra) it is in the case of Karan Mehulbhai Desai who was involved in some criminal conspiracy since he is appellant in such intra Court appeal and, therefore, so far as facts are concerned now it is clear that there is direct evidence against appellant in the form of FIR being Athavalines Police Station I C. R. No. 270 of 2014 whereas in para 7, the division bench has simply re-appreciated the principles which is discussed herein above and, therefore, only because of such judgment also it cannot be said that there is no case in favour of the petitioners.
8. In view of above discussion, now it becomes clear that there is no straight jacket rule that only because of allegations regarding mass copying or unfair means in examination, the High Court should not entertain the petition. It is also clear that cited cases may be differentiate in two categories i.e. cases where there is direct evidence and/or admission of the guilt by the candidates/students regarding unfair means followed during examination, in that case, it can be understand that the Court should not interfere in the decision of the concerned authority of managing examination. However, even in such cases the Honourable Supreme Court has with no interfere in the decision of punishment modified the punishment and, therefore, scrutiny by the Court regarding existence of direct evidence or admission is necessary and in given case, there may a need to verify the quantum of punishment also.
8.1 Whereas the second category of cases are of such nature wherein admittedly, there is no direct evidence or admission of the students /candidate so as to confirm that they were involved in unfair means during examination. In such cases, as held in cited Page 19 of 24 HC-NIC Page 19 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER cases there is need to scrutinize that whether probabilities and circumstantial evidence justified the convulsion by the concern authority, so as to impose punishment to the concerned student or not.
9. It is undisputed fact that present case is not the case of clear direct evidence or admission by the petitioner regarding their involving themselves in unfair-means in the form of mass copying as alleged. Even if some other students have either admitted or not challenged their punishment, it may not be the ground to conclude that petitioners are not entitled to relief when others have either admitted their guilt or not challenged the order of punishment.
10. As already discussed herein above, the factual details before us are altogether different in as much as after the date of show cause notice being 21.01.2017, in fact respondents themselves have not only declared the result of the petitioner on 25.01.2017 as pass but issued provisional certificate on 07.02.2017 confirming that petitioner has fulfilled all the prescribed academic requirement of Gujarat Technological University for the Diploma in Mechanical Engineering with 6.06 CGPA. The certificate is provisional not because of the impugned order or the allegations thereunder but it is categorically stated in such certificate that this provisional certificate is valid till the diploma certificate is given at the Convocation of the university. Therefore nomenclature of provisional certificate is only for administrative purpose and not because of any issue against petitioners. Copy of such certificate is produced at Annexure C (page 23) and when respondent could not explain in their reply that when they have already declared the result of the petitioners and when they have already issued the degree certificate, now they are estopped from submitting that the petitioner has entered into unfair means and thereby they are Page 20 of 24 HC-NIC Page 20 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER liable to be punished as per the impugned order. Now it does not suit to the respondents to plead against their own action whereby now respondents are precluded from alleging against the petitioners in consequence of their conduct and such bar or impediment would be effective immediately on declaration of result on 25.01.2017 which is after the show cause notice and again on 07.02.2017 when provisional certificate is issued and, therefore, impugned order based upon show cause notice is certainly unwarranted.
11. However the issue is also with reference to non offering of reasonable opportunity to the petitioners before passing final order by the last committee of 6 experts except calling them personally. Whereas the main issue is with reference to the constitution of actual probabilities and circumstantial evidence so as to confirm that this is the case of mass copying. Considering the fact as disclosed in earlier part of this judgment in case of science, maths and to some extent in all subjects if similar answers are given by more candidates then only because of similar answers given by more candidates, it cannot be said that they are involved in mass copying. If question is to answer the composition of water then all students certainly replies it as "H2O". Thereby it cannot be said that all candidates have copied the answers. Similarly if there is prescribed syllabus book or guide for question and answers and if all the students have referred the same book then all answers by all of them would be similar with similar examples. But only thereby it cannot be said that it is the case of mass copying. As against that the committee has presumed that somebody has dictated the answers from particular book but without any probabilities or circumstantial evidence for coming to such conclusion and, therefore, in absence of probabilities and circumstantial evidence there cannot be punishment based upon the presumption only and Page 21 of 24 HC-NIC Page 21 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER that too without allowing the petitioners to explain against such allegation. It is clear and obvious from record that the presumption based upon which guilt of the petitioner is confirmed i.e. mass copying by all students by way of dictation from the local staff is first time disclosed in the report of the committee and it was never conveyed to the petitioners to explain that these are circumstantial evidence against them and thereby there is denial of reasonable opportunity to the petitioners so as to explain that they have not taken dictation by anybody from the college, so as to result into mass copying. In the given facts and circumstance, as already observed herein above on the contrary, it seems that this is a case where respondent No.3 wants to settle some issue with respondent No.4 and, therefore, impugned order is passed and respondent No.4 was penalized as recorded herein above.
12. Thereby, the crux of the matter can be summerised as under;
(1) When there is clear admission by the students/candidates regarding mall practice or whether there is clear prima facie evidence during checking by examiner or squared like presence of cheat or any other material with the student, within examination hall. In those cases, above principle would be applicable that in such cases the Court should not interfere. But the second type of cases are of such a nature where there is neither admission nor direct clear evidence to confirm the mal practice. In those cases, there is need to scrutinize the probability and circumstantial evidence to justify the conclusion that student/candidate has committed mal practice. Therefore, in such cases scrutiny by the Court is necessary and thereby petition is maintainable.
(2) In present case, neither there is admission by the petitioners nor there is direct evidence to confirm mal practice and therefore, scrutiny regarding probability and circumstantial evidence, whether it is sufficient or not is necessary. Therefore, petition is Page 22 of 24 HC-NIC Page 22 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER maintainable.
(3) It is undisputed fact that after issuance of show cause ntoice on 21.01.2017 and before its service on petitioner on 28.01.2017, respondents themselves have declared the result of the petitioners as 'pass' and on 07.02.2017 issued a degree certificate which is provisional only for want of holding convocation. Thereby, practically respondents have admitted that petitioners are not involved in the mal practice and their conduct estopped them from taking different view without any reason.
(4) Though petitioners were served with the show cause notice it cannot be said that ample opportunity was given to them, because report of neither committee was never provided to the petitioners never called upon to prove their innocence.
(5) The base for the decision that somebody has dictated the answerers to all the students in the class room of particular college was never disclosed to the petitioners so as to enable them to put forward their case in appropriate manner. Therefore, there is lack of extension of reasonable opportunity and thereby there is failure of natural justice.
13. Thereby there is prima facei case in favour of the petitioners so as to get interim relief, so also balance of convenience is in favour of the petitioners and in absence of interim relief as prayed for there would be irreparable loss to the petitioners. As against that respondents have nothing to loose if interim relief is granted at this stage because ultimately final order would prevail.
14. In view of above facts and circumstance, let there be Rule returnable on 08.12.2017. Parties shall complete the pleadings before 17.11.2017. Let there be an interim relief in terms of para 21(C) till final disposal of these petitions.
Page 23 of 24 HC-NIC Page 23 of 24 Created On Mon Oct 02 04:54:58 IST 2017 C/SCA/11464/2017 CAV ORDER (S.G. SHAH, J.) drashti Page 24 of 24 HC-NIC Page 24 of 24 Created On Mon Oct 02 04:54:58 IST 2017