Rajasthan High Court - Jaipur
Bhupendra Pratap Singh Rathoe vs Raj University Of Health Seci&Ors on 27 January, 2014
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR [1] S.B. Civil Writ Petition No.7006/2011 Suryaveer Singh Versus Rajasthan University of Health Sciences & Ors. [2] S.B. Civil Writ Petition No.7226/2011 Jagdish Prasad Kardolia Versus Rajasthan University of Health Sciences & Ors. [3] S.B. Civil Writ Petition No.7227/2011 Naveen Yadav Versus Rajasthan University of Health Sciences & Ors. [4] S.B. Civil Writ Petition No.7228/2011 Mayank Yadav Versus Rajasthan University of Health Sciences & Ors. [5] S.B. Civil Writ Petition No.7248/2011 Bhupendra Pratap Singh Rathore Versus Rajasthan University of Health Sciences & Ors. [6] S.B. Civil Writ Petition No.7337/2011 Nikita Chauhan Versus Rajasthan University of Health Sciences & Ors. [7] S.B. Civil Writ Petition No.7354/2011 Om Prakash Paliwal Versus Rajasthan University of Health Sciences & Ors. [8] S.B. Civil Writ Petition No.7357/2011 Chandra Shekhar Meena Versus Rajasthan University of Health Sciences & Ors. [9] S.B. Civil Writ Petition No.7387/2011 Ravikant Nirwan Versus Rajasthan University of Health Sciences & Ors. [10] S.B. Civil Writ Petition No.7388/2011 Dharmendra Ola Versus Rajasthan University of Health Sciences & Ors. [11 S.B. Civil Writ Petition No.7913/2011 Santoshi Meena Versus State of Rajasthan & Ors. [12] S.B. Civil Writ Petition No.8163/2011 Prashant Mahar Versus Rajasthan University of Health Sciences & Ors. [13] S.B. Civil Writ Petition No.8164/2011 Nishant Mahar Versus Rajasthan University of Health Sciences & Ors. [14] S.B. Civil Writ Petition No.12072/2011 Mayank Nagar Versus Rajasthan University of Health Sciences & Ors. DATE OF ORDER : 27/01/2014 HON'BLE MR. JUSTICE M.N. BHANDARI Mr. Bajrang Lal Sharma, Sr. Adv. with ] Mr. Babulal Sharma ] Mr. S.P. Sharma, Sr. Adv. with ] Mr. Gaurav Sharma ] for petitioners Mr. Shyam Arya ] Mr. Ashok Gaur, Sr. Adv. with ] Mr. Ashwini Jaiman ] Mr. G.S. Bapna, Advocate General Mr. Rajendra Soni ] Mr. M.A. Khan ] for respondents
Mr. R.A. Katta ] *** By these writ petitions, a challenge is made to the order dated 12.05.2011 whereby admission of the petitioners in MBBS Course has been cancelled.
Learned counsel for petitioners submits that after remaining successful in Rajasthan Pre Medical Test, 2009 (in short RPMT), the petitioners were given admission in MBBS Course based on their merit. While the petitioners were undertaking the course, a writ petition in the case of Jhabar Singh Jat Vs. Rajasthan University of Health Sciences & Ors., S.B. Civil Writ Petition No. 9952/2009 was decided by this court on 31st March, 2011. Therein, apart from many issues, allegation of cheating by impersonation in RPMT Examination was made.
This court while hearing the writ petition of Jhabar Singh Jat (supra), issued interim directions to the State Government to constitute an inquiry in regard to the allegation of cheating by impersonation. The committee so constituted submitted its report wherein allegation of impersonation was found proved. The court thereupon directed Shri P.K. Singh, an IPS Officer of Rajasthan Cadre, to hold an inquiry. The scope of inquiry was regarding allegation of illegal admission by Mahatma Gandhi Medical College apart from allegation of cheating by impersonation in RMPT. Shri P.K. Singh submitted his detail report wherein apart from pointing out illegalities in admissions, names of 16 students were given, who indulged in cheating by impersonation. This court thereafter decided the petition with certain directions.
The respondents gave show cause notice to the petitioners on 20th April, 2011 but without ascertaining as to whether notice has been served or not and without giving proper opportunity of reply, cancelled the admission in MBBS course vide order dated 12.05.2011.
Shri B.L. Sharma, Senior Counsel submitted that initiation of action by the respondents was in violation of Ordinance 152(3) of Rajasthan University Ordinance as adopted by Rajasthan University of Health Sciences. The order and the decision was taken by the Board of Management, though not competent. As per Ordinance, competence of such decision lies with the Syndicate thus action as well as impugned order deserves to be set aside on this ground alone. Reference of judgment in the case of Commissioner Of Police, Bombay vs Gordhandas Bhanji, reported in AIR 1952 SC 16 has been given to support the arguments. It is further stated that even the procedure provided under Ordinance 152(5)(vii) and (viii) apart from 152(J)(iv) was not followed. The respondents issued show cause notice and impugned order in violation of the provisions referred to above. They simply relied on the judgment of this court in the case of Jhabar Singh Jat (supra) without even causing inquiry at their level. The Board of Management took decision without application of mind. The Syndicate should have constituted a committee to inquire into the matter. The respondents failed to apply procedure given under the Ordinance.
Learned counsel stated that judgment in the case of Jhabar Singh Jat (supra) shows intention of the respondents to accept the inquiry report of P.K. Singh committee for action without further inquiry at their own level. It is moreso when the petitioners were not party to the said litigation, thus had no opportunity of hearing. It is in ignorance of the rights of the petitioners guaranteed under Article 21 of the Constitution of India.
Learned counsel had made reference of the inquiry report submitted by Shri P.K. Singh committee. In regard to the allegation of impersonation, thumb impression/signature/hand writing of the students were collected from Jaipur, Kota, Jhalawar, Udaipur, Ajmer, Jodhpur and Bikaner. It was then compared by two systems. First was Student Identification System (SIS) and other was Manual Thump Impression (MTI). As per Finger Print Bureau Report, thumb impression on OMR-sheet of 208 students out of 212 was not clear and it could not assess as to whether 212 students were involved in impersonation. In view of the above, report given by P.K. Singh committee should not have been relied without further inquiry by the respondents at their own level. A reference of judgment in the case of State of Kerala and Ors. Vs. President, Parent Teacher Association SNVUP and Ors., reported in (2013) 2 SCC 705 has been given to support the arguments. Shri P.K. Singh committee did not call Invigilator, Principal or the Examiner during the course of inquiry. In view of the above, the committee was not in a position to assess as to whether same student appeared in the entrance test or not. The Invigilator should have been called and questioned by the committee to find out as to whether students were allowed to appear after matching their whereabouts from the application forms. All the relevant facts are missing in the report, yet relied upon by the respondents without making scrutiny at their own level.
Shri Ashok Gaur, Senior Counsel, adopted the arguments made by learned Senior Counsel Shri B.L. Sharma. In addition to it, he submitted that P.K. Singh's report should not have been made basis for passing the impugned order. In some of the cases, even show cause notice was not given. According to the learned counsel, when FIR was lodged, then the respondents should have awaited for the final outcome of the FIR but in haste, they passed the impugned order. Shri P.K. Singh committee did not call the students for their thumb impression. It is apart from a confusion as to whether thumb impression was of left or right hand thus they had taken thumb impression of both the hands and if comparison was made without knowing as to which hands thumb impression exists on the document, finding given by the committee should not have been relied. Learned counsel made specific reference of Para No.5.6 of the report where issue of impersonation has been dealt with. A further reference of Para 6.7, and 6.7.1 was given to show that even after taking impression of both thumbs, comparison was made only with left thumb, which cannot give correct result if thumb impression of right hand was on the document.
Learned counsel alleged violation of Ordinance 152 of the University and made reference of judgment of this court in the case of Ranjeet Singh Vs. The University of Rajasthan, reported in 1966 RLW 275. The judgment aforesaid is in reference to Ordinance 152 of Rajasthan University. A further reference was given to the judgment in the case of Sanjay Labo Vs. The University of Rajasthan, reported in AIR 1981 Rajasthan 69 and also a case reported in AIR 1981 Rajasthan 188, Suresh Kumar Bagaria Vs. University of Rajasthan & Anr. In those cases, similar issue was dealt with by this court.
Learned counsel further placed reliance on the judgments of Hon'ble Apex Court in the case of K. Vijayalakshmi Vs. Union of India & Ors., reported in (1998) 4 SCC 37 and Roop Singh Negi vs Punjab National Bank & Ors., reported in (2009) 2 SCC 570. It was held that without availability of material, adverse decision should not be taken. At this stage, learned Senior Counsel Shri Ashok Gaur stated that if any of the petitioner indulged in unfair practice of cheating by impersonation in RPMT then this court can very well pass adverse order against them but it should be on a proper scrutiny and not in the manner, it has been done by the respondents by applying the inquiry report of P.K. Singh committee without further scrutiny.
Learned counsel for petitioners prayed for independent report from a Forensic Laboratory of Government of India so that a proper and independent report may come to find out as to whether petitioners indulged in cheating by impersonation in RPMT.
Learned counsel for respondents initially raised objection on the aforesaid however agreed on the proposal. A prayer is however made that if report comes adverse to the petitioners, the impugned order will have effect without further directions.
Learned Senior Counsel Shri S.P. Sharma adopted the arguments made by the other learned counsel for the petitioners. He however made a reference of order passed in the case of D.B. Civil Special Appeal (Writ) No.461/2011, Ravikant Nirwan Versus Rajasthan University For Health Sciences & Ors. Therein, the Division Bench of this court gave liberty to assail the show cause notice and the impugned order by appropriate proceedings and thereby the writ petition has rightly been maintained to assail the action of the respondents. A reference of judgment in the case of Jhabar Singh Jat (supra) is also given to show that this court appreciated the report and while disposing of the writ petition, official respondents were directed to look into the inquiry report and take independent decision for initiation of action. The decision was ordered to be taken without bias. The respondents should have made independent inquiry in the matter before taking action.
Learned counsel for the University, Shri M.A. Khan contested the writ petition on all the grounds. At the outset, it was submitted that the court should be slow to cause interference in the matter related to education in view of the judgment of Hon'ble Apex Court in the case of Director (Studies), Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh & Ors. Vs. Vaibhav Singh Chauhan, reported in (2009) 1 SCC 59.
Coming to the factual matrix, the statement of the counsel for the petitioners that thumb impression of the candidates were not taken by P.K. Singh committee has been contested. The inquiry was made by the committee headed by P.K. Singh. It not only compared thumb impression, but comparison of signature and hand writing was also made through Forensic Science Laboratory. To have a proper scrutiny, it was not only compared by manual process but through SIS thus it cannot be said to be a casual scrutiny of material. Once the report came adverse to the petitioners, there was no reason to continue them. The respondents after going through the report and with application of mind, passed the impugned order. The petitioners were served with the show cause notice followed by impugned order when no satisfactory reply was given. A reference of the judgment of Hon'ble Apex Court in the case of Madhyamic Shiksha Mandal, M.P. Vs. Abhilash Shiksha Prasar Samiti, reported in (1998) 9 SCC 236 is given to support the arguments. Therein, report of Nayab Tehsildar, who was not even authorized to visit the examination centre, was relied and action of the examining body was upheld. In the instant case, P.K. Singh was appointed by this court itself thus placing reliance on the report cannot be said to be illegal.
Coming to the issue of the competence of the Board of Management, it is stated that a meeting was held on 04.05.2011. Therein after proper scrutiny of the issue and even after going through reply to the show cause notice dated 20.04.2011, a decision was taken to cancel the admission. The order aforesaid was not passed in the name of Syndicate as it is known as Board of Management. It was as per Rajasthan University of Health Sciences Act, though while adopting Ordinance of Rajasthan University, the University of Health Sciences should have made change in the nomenclature of Syndicate by replacing it by Board of Management, keeping in mind Rajasthan University of Health Sciences Act. In any case, a decision was taken by the highest body thus may not be interfered.
So far as allegations of the violation of principles of natural justice are concerned, it is submitted that thumb impression was obtained by P.K. Singh committee thus petitioners were party to the inquiry. They were then served with the show cause notice before cancellation of admission. In view of the above, impugned order has not been passed in violation of the principles of natural justice. A reference of judgment reported in the case of Controller of Examinations & Ors. Vs. G.S. Sunder & Anr., reported in 1993 Supp (3) SCC 82 is given where the Hon'ble Apex Court observed that the court should be slow to interfere in the matters of education.
Learned counsel for respondent-University further states that Ordinance 152 has not been flouted. Referring to the various provisions which includes Rajasthan University of Health Science Act, 2005. It was submitted that Syndicate does not exist even in the Act of 2005. In view of the aforesaid, not only the competent authority passed order but it was after applying the procedure, as given in the Ordinance.
Learned counsel Shri R.A. Katta supported the arguments of Shri M.A. Khan. A reference of judgment in the case of Abhyudya Sanstha Vs. Union of India, reported in (2011) 6 SCC 145 has been given. Therein, illegal and irregular appointments were not interfered in the name of equity jurisdiction. It was a case of mis-representation and the petitioners did not approach the court with clean hands. Further reference of recent judgment of Karnataka High Court in the case of Nilesh Kumar Vs. State Of Karnataka, Writ Petition No.49971/2012, decided on 25th February, 2013 was given.
I have considered the submissions made by the parties and perused the record.
Learned counsel for petitioners have raised many grounds to challenge the impugned order by which admission in the MBBS course has been cancelled. The arguments are not only in regard to violation of Article 21 of the Constitution of India but even for violation of the principles of natural justice. The allegation of violation of procedure provided under the Ordinance of University so as competence to pass impugned order has been made. The inquiry report submitted by P.K. Singh Committee has also been criticized apart from reference of few paras to show that even thumb impressions were not comparable. Many candidates could get benefit due to aforesaid even if they were involved in cheating by impersonation. Shri B.L. Sharma and Shri Ashok Gaur, learned Senior Advocates made reference of few paras of inquiry report to assert that it should not have been relied by the respondents without further scrutiny at their own level. Reference of judgment of this court in the case Jhabar Singh Jat (supra) was also given to show pre-determination of the respondents for action under challenge.
Learned counsel for petitioners however stated that students should not be made free rather should be given severe punishment which includes even cancellation of the admission, if they indulge in cheating by impersonation but it should not be by applying the report of a committee without further scrutiny. It is moreso when the petitioners are meritorious thus there was no reason to indulge in cheating by impersonation in RPMT. They fairly proposed for an independent report in respect of the petitioners from the experts and Forensic Laboratory of the Government of India and if report comes adverse, then to give effect to the impugned order. The respondents initially contested the proposal but then agreed to the aforesaid. In view of the above, this court is not required to deal with all the issues, though arguments in respect of inquiry report could have been scrutinized to find out as to whether it was properly conducted or not but to have confidence of the students and a further opinion, this court has accepted the proposal of independent report from Forensic Science Laboratory as well as an expert through an establishment of Government of India which would be independent and parties can depose confidence.
In view of discussion made above, these writ petitions are disposed of with the following directions:
(i) The respondents are directed to get report from any of the following agencies which are as under:
(a) Central Forensic Science Laboratory, (CBI), New Delhi.
(b) Forensic Science Laboratory, Government of National Capital Territory of Delhi, Sector 14, Rohini, Delhi 110085.
(c) Central Forensic Science Laboratory, Osmania Institutional Area, Hyderabad.
To seek report regarding allegation of cheating by impersonation, the entire material would be sent by the respondent-University to any of the agencies named above and to have proper monitoring and coordination, the IG, Crime Bureau, Rajasthan, Jaipur is directed to act as a Co-ordinator for the aforesaid purpose. If the record exist in the court or elsewhere, it may be obtained.
(ii) The respondent-Rajasthan University of Health Sciences will co-operate with I.G., Crime Bureau, Rajasthan, Jaipur to get report at the earliest. The report may be submitted by the agency to whom it is assigned, within a period of three months from the date of receipt of the material/documents. The agency to whom work is assigned will examine the material and give its independent report after examining thumb impression, signature and hand writing of the petitioners to record their finding as to whether they indulge in cheating by impersonation or not.
(iii) If report comes adverse to the petitioners then impugned order would become effective and thereby admission would be treated as cancelled. If report comes favourable then impugned order would have no effect rather to be treated as set aside.
(iv) The respondent-University is directed to send copy of the inquiry report of P.K. Singh committee to the Forensic Science Laboratory concerned to see the areas of examination however it would not mean that inquiry report should be relied. The P.K. Singh committee report would be given only for their convenience to find out the areas of examination.
[M.N.BHANDARI], J.
FRBOHRA/7006CWP2011.doc Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
FATEH RAJ BOHRA, SR.P.A