Madras High Court
S.Dhivagar vs The Director on 19 January, 2011
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.01.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.Nos.8063 and 8600 of 2010 S.Dhivagar ... Petitioner in W.P.No.8063 of 2010 Sourav Kumar ... Petitioner in W.P.No.8063 of 2010 Vs. 1.The Director, Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER), Danvantri Nagar, Puducherry-605 006. 2.The Dean, Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER), Danvantri Nagar, Puducherry-605 006. ... Respondents in both WPs Prayer in both WPs: Writ petitions filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, calling for the records pertaining to the Memorandum No.JIP/1/2010 dated 01.04.2010 on the file of the 2nd respondent and quash the same and consequently direct the respondents to permit the petitioners to continue his studies in the respondents' college pending disposal of the criminal case. For petitioners : Mr.V.Ayyadurai For Respondents : Mr.M.Ravindhran, ASGI O R D E R
In both the writ petitions, the petitioners have sought for a Writ of Certiorarified Mandamus, to quash the proceedings of the Dean, Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER), Puducherry, the 2nd respondent herein, dated 01.04.2010, by which, the petitioners have been suspended from MBBS course with immediate effect and not permitted to attend the classes on the ground that they were alleged to have involved in impersonation in JIPMER MBBS Entrance Examination conducted on 07.06.2009. As pleadings and submissions are common, both the writ petitions are taken up together and disposed of by a common order.
2. According to the petitioners, they have secured good marks in the qualifying examination. They applied for admission to the 2nd respondent institution. They wrote the entrance examination conducted by the second respondent-Institution. In W.P.No.8063 of 2010, the petitioner has submitted that he has scored 132 marks in the entrance examination and secured 26th position in the ranking. After counselling, both the petitioners were admitted to Ist year MBBS course in the 2nd respondent institution in July 2009. While the petitioners were pursuing their studies, to their shock and surprise, they were informed that after verifying the signatures and finger prints of 77 candidates, contradictions were found in the signatures and thumb impressions of four students and therefore, the 2nd respondent has given a complaint to D'Nagar Police station, Puducherry, on 29.08.2009. Though the petitioners have not committed any offence, apprehending arrest, they obtained anticipatory bail. Thereafter, they continued their education. Suddenly, by impugned order dated 01.04.2010, the petitioners were suspended from MBBS course, with immediate effect and that they were not permitted to attend the classes. It is their contention that though they approached the Dean, JIPMER, the 2nd respondent herein, he refused to give any suitable answer. As the examinations for the MBBS course were scheduled on 26.04.2010 and having regard to the fact that they had continued their education without any adverse remarks from July 2009, they were constrained to prefer the present writ petitions for the relief stated supra. According to the petitioners, they have not committed any misconduct, cheating/impersonation, as alleged in the impugned memo dated 01.04.2010, by which they were suspended.
3. Taking this Court, through the admission procedure set out in the prospectus for admission to the Ist year MBBS course in the 2nd respondent institution, Mr.V.Ayyadurai, learned counsel for the petitioners, submitted that before granting admission to the second respondent-Institution, at each and every stage of the process, the identity of a persons, who applied for admission to the course has been verified and therefore there is no chance for any student for committing any irregularity, muchless cheating or impersonation. According to him, as per the prospectus, applications for the entrance examination to the MBBS course 2009 can be sent through online and that the candidate has to send the application with requisite signatures, photograph, attestation, left thumb print along with Demand Draft. He also submitted that after scrutiny of the applications, they are scanned and only thereafter, hall tickets were issued to the students.
4. Inviting the attention of this Court to the instructions to be followed in the entrance examination, Learned counsel for the petitioners further submitted that the candidates must sign in the attendance sheet, at the appropriate place and affix their thumb impression against the appropriate column of the attendance sheet and failure to comply with the requirements will lead to annulling of the candidature without any previous intimation. He also submitted that there is also a provision to videograph the conduct of the entrance examination, and that the same was done, in the year 2009 and as per the instructions contained in the prospectus in the entrance examination, the candidates are required to keep their head in upright position and face the camera, during videography, so that their identity could be clearly established. According to him, both the petitioners have gone through the abovesaid process, right from the date of submission of their applications till they wrote their entrance examination conducted by the 2nd respondent. Thereafter, they were placed in the order of merit and called for counselling. Therefore, he submitted that at all stages, the identity of the petitioners was verified by the respondents and there is absolutely no scope for any malpractice in the entrance examination. According to him, only in the hall ticket and in the attendant sheet, finger print of the candidates, was not taken. Learned Counsel for the petitioners further submitted that when positive and effective materials were already available with the respondents, and when such strict procedure has been followed to prevent any malpractice being committed in the entrance examination for admission to MBBS course, in the 2nd respondent institution, the respondents have chosen to hastily act on the basis of an unconfirmed report from a former Assistant Director of the Forensic Department (Retd.) and a finger print consultant, Chennai, for passing the impugned order of suspension. According to the Learned Counsel for the petitioners, no conclusion of guilt can be arrived at, based on the report of the said persons. He further submitted that the whole proceedings, both prosecution and the internal action in suspending the petitioners have been taken purely on the basis of suspicion, that they were involved in cheating/impersonation. Even assuming that there is a high degree of suspicion, that should not be a cause for suspending the petitioners from MBBS course and that would affect their career. According to the learned counsel, though a complaint was lodged with the police in August 2009, under Sections 419 and 420 IPC read with Section 34 IPC, as early as on 31.08.2009, the petitioners and two others were permitted to complete the academic year and when they were ready to take up the examination in April 2010, being actuated with malice, the 2nd respondent, has issued the order of suspension. Though the respondents had the relevant materials in their possession, to verify the signatures and thumb impression, as to the identity of the persons, who took up the entrance examination, the second respondent, in order to prevent the petitioners from taking up the examination, has issued the order of suspension and therefore, malafide is apparent.
5. Taking this Court, through the contents of the order of suspension, he further submitted that the reports of the experts engaged by the 2nd respondent college, cannot be said to be authenticated reports given by competent authorities, as stated in the impugned order of suspension and in such circumstances, there is a total non application of mind, on the part of the 2nd respondent in issuing the impugned order of suspension. He also submitted that the impugned order does not spell out any valid reasons, such as formulation of any charges or enquiry into grave charges under contemplation and in such circumstances, this Court has to consider as to whether the petitioners-students have to remain under suspension, endlessly till the completion of the criminal case registered against them, along with others. According to him, the allegation levelled against the students, cheating or impersonation in the examination and their consequential suspension from pursuing MBBS course should not be equated with that of suspension of a government servant, pending enquiry and that the same has to be considered, taking into account their career, if suspension is prolonged. Pointing out that the respondents are not interested in initiating departmental proceedings, against the petitioners and others, who were alleged to have involved in cheating/impersonation, and rather prefer to wait till the completion of the criminal case wherein, the petitioners have been charge sheeted and of the fact, that two students against whom, the charge sheet has been laid, along with the petitioners, have already absconded and the delay, which is likely to be caused in the process of splitting up the prosecution in respect of the petitioners and the uncertainty in the result of the prosecution levelled against them, learned counsel for the petitioners submitted that retaining the petitioners under suspension endlessly would affect their education and career of the petitioners and ultimately, if they come out successful in the trial, the time lost by them cannot be regained and in such circumstances, when the petitioners are willing to face any departmental enquiry, the respondents can permit them to continue the course, subject to the outcome of any internal enquiry.
6. Repelling the above submissions, Mr.M.Ravindhran, Learned Additional Solicitor General of India, submitted that the petitioners submitted the application forms in the pre-printed form [scannable and non scannable forms]. In the non scannable form, the petitioners had affixed their left hand thumb impressions and left hand index finger impressions and signatures and the non scannable form also contains the photograph with placard and signatures. He further submitted that insofar as admission to MBBS course in JIPMER, Puducherry, is concerned, the entrance examination was conducted at various places and a total of 17,389 candidates wrote the entrance examination and after publication of the results, on 19.06.2009, 77 of them were called for counselling from 15.07.2009. After admission of the candidates to the Ist year MBBS course 2009-10, the correctness of the certificates, matching of signatures and fingerprints were verified by a Professor and Former Director [Documents] (Retired), Forensic Science Department, Government of Tamil Nadu, and a Finger Print Expert, Chennai. In their reports, it was clearly stated that the signatures of the petitioners were different and the finger prints obtained at the venue of examination hall were also not identical. In view of the same, a police complaint was lodged to the Sub Inspector of Police, D'Nagar Police station, Puducherry, against the petitioners and others, for appropriate action. In this regard, the Learned Additional Solicitor General of India, also took this Court through the contents of the complaint lodged by the Dean of the 2nd respondent institution.
7. As regards the arguments of the learned counsel for the petitioners that there was hastiness in suspending the petitioners from MBBS course, he further submitted that the verification of the finger prints and signatures of all the abovesaid candidates, who took up the entrance examination conducted in various centres like, Puducherry, Chennai, Hyderabad, Thiruvanandhapuram, etc., were verified by the experts, between July and August' 2010 and it took nearly two months. After examination of the reports, it was found that only four finger prints and signatures did not match with the application forms and thereafter, a detailed complaint was preferred to the police, as the matter required further investigation and action to be initiated, if confirmed.
8. Taking this Court through the report of the police dated 29.03.2010 of the Inspector of Police, D'Nagar circle, Puducherry, addressed to the Dean of the 2nd respondent institution, the Learned Senior Counsel further submitted that the handwritings/signatures found in the MBBS application forms submitted by the petitioners and in the entrance examination application forms, admitted handwriting, signatures of the suspected persons, during counselling and the sample handwriting, signatures of the suspected persons, obtained by the Police, have been forwarded to the Forensic Sciences Department, Mylapore, by the police, through a court of competent jurisdiction and after obtaining the opinion of the Fingerprint Expert and Document Expert, the Inspector of Police, D'Nagar Circle, Puducherry, has prima facie found that the petitioners, who attended counselling for the Ist year MBBS course, were not the persons who wrote MBBS entrance examination and that therefore they have committed impersonation and dishonestly obtained admission to the Ist year MBBS course in the second respondent-Institution. According to him, the respondents have acted on the basis of an authenticated report given by the investigating officer and the suspension of the petitioners is based on the prima facie material and it was not actuated by any malafide intention.
9. Inviting the attention of this Court to the final report filed before the Learned Judicial Magistrate No.II, Puducherry, and the criminal case in C.C.No.393 of 2010 dated 09.06.2010, Learned Senior Counsel further submitted that out of the four persons alleged to have committed impersonation and charge sheeted, two of them have absconded and therefore, the trial has to be split up and conducted against the petitioners. He also submitted that the trial is posted on 25.01.2011 and since most of the witnesses are from the second respondent-Institution and experts, it may not take a long time for the completion of trial. It is his further submission that since the original finger prints and the application forms containing the signatures of the petitioners and others have been taken by the police during investigation and sent for experts opinion, as stated supra, and since the matter involves adjudication with reference to the experts opinion namely, finger print expert and handwriting expert, the College administration has desired to await for the outcome of the trial by the competent criminal court.
10. Learned Additional Solicitor General of India also submitted that if there is any apprehension on the part of the petitioners that the trial is likely to be prolonged, appropriate directions may be issued to the Criminal court for early disposal of the trial. He further submitted that the loss of one seat in the college, an institution of national importance, is a loss to the country and the petitioners who have involved themselves in such dubious method, do not deserve any sympathy from this Court, particularly, when both the Fingerprint and handwriting experts, have come out with a prima facie opinion. Learned Senior Counsel further submitted that though adequate precautionary measures have been taken in the entrance examination and selection of candidates to the Ist year MBBS course in the 2nd respondent institution, which has very limited seats and having regard to the past experience and despite the introduction of the method of obtaining the signatures, fingerprints, etc., still the petitioners with a desire to get admission to the second respondent-Institution, at any cost, have indulged in serious acts of impersonation and gained admission. He further submitted that if appropriate action is not taken against them, then the discipline to be maintained the institution, the foremost aspect in education, would be very much affected. He further submitted medical education is the most sought for by the meritorious candidates and the same cannot be acquired by this method, thereby, depriving the chances of other meritorious students.
11. Inviting the attention of this Court, to clause 19 of the instructions to be followed in the instructions, contained in the prospectus, Learned Senior Counsel further submitted that what is stated in the prospectus is that the conduct of the examination could be videographed, but in the case on hand, on the date of entrance examination, no videographing was done and that it is not mandatory as per the prospectus. He also submitted that even though the evidence collected and possessed by the college administration was sufficient to take appropriate disciplinary action against the petitioners and two others, by placing them under suspension, yet, the college administration did not act arbitrarily on the basis of the opinion obtained from their experts, but only after receipt of an authenticated report from the police, suspension was resorted. Therefore, the Learned Additional Solicitor General submitted that action has been taken on the basis of the report from a competent authority and for the reasons, prayed for dismissal of the writ petitions.
12. By way of reply, Mr.V.Ayyadurai, learned counsel for the petitioners submitted that the contention that no videograph was taken on the date of the entrance examination, without there being any averments in the counter affidavit need not be considered by this Court and if the respondents have not taken any videography, as per the instructions contained in the prospectus, the petitioners cannot be put to hardship. It is his further submission that even the police report, which is alleged to have been taken, as the basis for suspension of the petitioners from the medical course has not been referred to in the impugned order of suspension and it is nothing but an invention of the college administration to place the petitioners under suspension. Summing up, he prayed that while adjudicating the issue, this Court may consider the plight of the students and their career, and if they have to be kept away from pursuing their medical education, till a finality is arrived at in the trial, it would result in hardship. Learned Counsel stressed that the petitioners who are now accused of certain criminal charges need not be punished, at this juncture, without there being any finding on the charges.
13. Heard the learned counsel for the parties and perused the materials available on record.
14. Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER), Puducherry, is an institution of national importance founded in 1823 by the French Government and taken over by the Government of India in 1956 and it was upgraded as Post graduate institution in 1964. The courses imparted by this institution are recognised across the country and even abroad. Admission to MBBS course is through entrance examination conducted by JIPMER and as per the prospectus, there are six centres for conducting the entrance examination i.e., Chennai, Puducherry, Hyderabad, Thiruvanandapuram, Kolkatta and New Delhi. As per the information furnished by the Dean, JIPMER, the entrance examination for admission to MBBS course has been conducted on 07.06.2009 at six centres in various places, stated supra, namely, Puducherry- 5 venues, Chennai- 3 venues, Hyderabad- 6 venues, Thiruvanandapuram- 5 venues, Calcutta- 5 venues, and New Delhi- 9 venues. About 17,389 candidates have written the entrance examination. As per the instructions contained in the prospectus, a candidate can send the application through online. In respect of online applications, they will have a printed form [2 pages] and not separate scannable and non scannable forms. Through online, the candidate can send the application form with requisite signatures, photograph, attestation, left thumb print along with the Demand Draft.
15. As rightly contended by the learned counsel for the petitioners, the hall ticket would bear only the photograph, name, examination centre and other particulars such as roll number, date of birth etc., and not the finger prints. As per clause 16 of the instructions to be followed in the examination hall, the candidate must sign in the attendance sheet, at the appropriate places and affix his left thumb impression, against the appropriate column in the attendance sheet. Though clause 19 of the instructions states that the conduct of examination could be videgraphed and that the candidates are required to keep their head in upright position and face the camera during videography, so that their identity could be clearly established, it is the specific case of the respondents that videography is only obligatory and not mandatory and in the instant case, no videography was done, on the date of entrance examination for admission to the Ist year MBBS course 2009-10. As rightly contended by the Learned Additional Solicitor General, the language employed in the prospectus does not mandate videography and it is only an enabling provision.
16. Pleadings and material on record disclose that to ascertain the identity of the persons who wrote the entrance examinations and to ensure that the one and the same person applied, had written the examination and presented himself for counselling and admission and to find out the genuineness of certificates, matching of signatures and finger prints of all the selected candidates have been referred to Professor Mr.K.Ramakrishnan, Assistant Director (Documents), [retired] Forensic Science Department, Government of Tamil Nadu and Mr.Dick Philips, Finger Print Consultant, Chennai. The documents sent for verification to the experts are as follows:
Q1 Signature and finger prints in two application forms sent by each selected candidate.
Q2 Signature and finger prints in the attendance sheet of each selected candidate obtained at the venue of entrance examination.
Q3 Signature and finger print obtained from each selected candidate at the time of counselling.
17. Perusal of the police complaint made by the Dean of the second respondent-Institution shows that the above mentioned experts have compared the documents Q1, Q2 and Q3 of all the 77 students admitted to the Ist year MBBS course till 25.07.2009 and that they have reported significant contradictions in the signatures and finger prints and as per their reports, the following contradictions have been noticed.
SlNo Appln.
No. Roll No. Centre Name Signature difference Finger print not identical 1 24066 12991 Puducherry Dhivagar Yes Yes 2 34769 52658 Kolkata Sourav Kumar Yes Smudged 3 37040 65987 New Delhi Manoj K Rajak Yes Yes 4 34948 67237 New Delhi Dheebika Yes Yes
18. Based on the information and verification of the data by the experts, the college administration was of the prima facie opinion that there was a foul play in the entrance examination and cheating/impersonation have taken place in the examination hall and therefore, came to the conclusion that the matter requires further investigation and action to be initiated, if confirmed. As rightly contended by the learned Additional Solicitor General, verification of the signatures, finger prints require careful scrutiny and during the process, the petitioners have undergone their education, in the 2nd respondent institution.
19. Perusal of the complaint dated 31.08.2009 of the Dean, JIPMER, Puducherry further shows that while lodging a complaint with the Sub Inspector of Police D'Nagar Police station, Puducherry, the Dean of the said college has enclosed the following documents.
(1) Xerox copies of Application forms of candidates Sl. No.1-4.
(2) Xerox copies of Hall Tickets of candidates for the Entrance Examination Sl. No1-4 (3) Xerox copies of Attendance sheets of candidates Sl.No.1-4.
(4) Xerox copies of Signatures and finger prints of candidates at the time of counselling Sl. No.1-4 (5) A copy of pseudonymous Fax received on 15th July 2009 about S.No.2.
(6) Detailed report of Handwriting expert of all candidates (77) Sl No.1-4. highlighted.
(7) Detailed report of finger print expert of all candidates (77) Sl No.1-4. highlighted.
(8) JIPMER MBBS Prospectus dated 22.02.2009 vide page 18 which includes provision regarding place of cognizance.
20. Though there was a high degree of suspicion that cheating/impersonation had taken place, having regard to the education of the petitioners, the 2nd respondent has not come to any hasty conclusion, but has thought it fit, that the matter requires investigation and criminal action, if it is confirmed. The College administration has not resorted to suspension of the petitioners, at this juncture.
21. Perusal of the letter of the Inspector of Police D'Nagar Circle, Puducherry, addressed to the Dean, JIPMER, Puducherry, shows that on receipt of the complaint, a case in Crime No.274/2009 under Sections 419, 420 IPC read with 34 IPC, has been registered on 31.08.2009 and during the course of investigation, witnesses were examined and that the police has also recorded their statements. On 01.09.2009, the original application forms of the suspected persons, their Hall tickets, attendance sheet, finger prints and signatures and a copy of the pseudonymous Fax received on 15.07.2009, reports of the Handwriting expert and the finger print expert, of all the 77 candidates and the prospectus have been seized by the Police for the purpose of investigation and sent to the Court of competent jurisdiction through Form 95. On 03.09.2009, the finger prints, sample signatures and handwritings of the suspected students including the petitioners have been obtained in the presence of two independent witnesses and that the same were also sent to the Court for comparison of the documents, which were already seized from the 2nd respondent institution, after a week i.e., 12.09.2009. The above sample finger prints and admitted finger prints i.e., found in the MBBS entrance examination attendance sheet of the students have been sent to Finger Print Bureau, Puducherry, through the Learned Judicial Magistrate II for expert opinion. Likewise, on 04.11.2009, the questioned handwritings/signatures found in the MBBS application forms and in the entrance examination application forms, admitted handwritings/signatures, obtained from the students, during counselling and the sample handwriting/signatures of the students have been forwarded to the Forensic Science Department, Mylapore, Chennai, through the Learned Judicial Magistrate II, for handwriting/signature experts' opinion, for the purpose, as to whether the petitioners have committed any offence punishable under law.
22. On examination of the finger prints of the petitioners, the abovesaid Fingerprint expert has opined as follows:
* The finger prints of the suspected person Divagar found in the MBBS application form, and in the admitted documents and sample finger prints are identical with each other, but the above finger prints were not identical with the finger print attested in the MBBS entrance examination attendance sheet.
* The finger prints of the suspected person Sourav Kumar found in the MBBS application form, and in the admitted documents and sample finger prints are identical with each other, but the finger print found in the MBBS entrance examination sheet is smudged and unfit for comparision.
23. After examining the handwritings/signatures of the petitioners, the Document Expert has opined as follows:
* The Handwritings/Signatures who wrote in the MBBS application form and in the attendance sheet I MBBS counselling form of the suspected person Dhivakar did not wrote the handwritings and signatures found in the MBBS entrance examination attendance sheet.
* The Handwritings/Signatures who wrote in the MBBS application form and in the attendance sheet I MBBS counselling form of the suspected person Sourav Kumar did not wrote the handwritings and signatures found in the MBBS entrance examination attendance sheet.
24. Both the Finger Print Expert, as well as the Document Expert have categorically opined that the persons who attended the counselling for the Ist year MBBS course are not the persons who have written the examination. Thus it is evident from the experts' opinion, four students namely, Mr.Dhivagar, Mr.Sourav Kumar, Mr.Manoj Kumar, and Mr.Deebika, there are incriminating materials against the petitioners for having committed impersonation and by dishonest means, obtained admission to Ist year MBBS course in JIPMER and thus cheated JIPMER administration. In the letter addressed to the Dean, JIPMER, Puducherry, the Inspector of Police D.Nagar Police Station has further brought to the notice of the college administration that out of the four accused persons, two of them accused, namely, Mr.Dhivagar, Mr.Sourav Kumar and Mr.Manoj Kumar have obtained Anticipatory Bail from this Court in Criminal Original Petition Nos.20564, 20817, 25818 of 2009 respectively. On 01.01.2009, Mr.Dhivagar, and Mr.Sourav Kumar have surrendered before the Learned Judicial Magistrate II, Puducherry, on 08.10.2009 and on 18.11.2009 respectively. As per the police report though another accused person namely, Mr.Manoj Kumar has obtained Anticipatory Bail, he did not surrender before the Criminal Court. At the time of obtaining anticipatory bail, the investigation was not completed and two other students namely, Mr.Manoj Kumar, and Mr.Deebika, were not arrested. Though the learned counsel for the petitioners submitted that the college administration with the available positive materials could have vertified the details and taken a decision, as to whether the petitioner have committed any malpractice, a serious misconduct of cheating/impersonation for securing admission to the Ist year MBBS course in JIPMER, pleadings and material on record disclose that, the college administration, having regard to the gravity of the offences and the complexity of the matter, has lodged a police complaint and that the investigating agency, after referring the relevant documents stated supra, to the experts and obtaining their reports, has come to a prima facie conclusion that the petitioners have indulged in malpractice and secured admission by fraudulent means. At this juncture, it is to be noted that on completion of the investigation, the Inspector of Police, D'Nagar Police station, Puducherry, has filed a final report dated 31.05.2009 to the learned Judicial Magistrate II, Puducherry, charging that in furtherance of common intention, the petitioners and two others, have dishonestly and fraudulently gained admission to MBBS course and thereby the abovesaid students are liable to be punished under Sections 419 and 420 IPC. The investigating agency has also produced a list of experts witnesses. Among the witnesses cited, the Director, Finger Print Bureau, Puducherry, an Officer of the Forensic Science Department, Puducherry, and Document expert, are also there. As the trial has been fixed on 25.01.2011, it may not be appropriate on the part of this Court to adjudge and record any finding as to whether the petitioners and other two students have committed the abovesaid offences, but at the same time, this Court is called upon to adjudicate as to whether on the basis of the available materials, particularly, the police report addressed to the Dean JIPMER, Pondicherry, drawn up after obtaining the opinion of two experts stated supra, the Dean, JIPMER, has exercised his discretion properly to suspend the petitioners from the course. Though the petitioners have come forward to face any internal enquiry to be concluded by the college administration, as rightly contended by the learned Additional Solicitor General, when the allegation of this complex nature of cheating/impersonation is levelled against the petitioners and two other persons, in securing admission to medical course, the decision of the college administration to a wait for the outcome of the trial scheduled to be commenced from 25.01.2011 cannot be said to be arbitrary or actuated by way of any malafide intention on the part of the college administration. Going through the contents of the prospectus in entirety and the efforts taken by the college administration to ascertain the alleged malpractice of committing impersonation, this Court is of the view that though adequate precautionary measures have been taken to prevent any fraudulent act of cheating/impersonation, the materials on record clearly indicate that the decision of the college authorities to suspend the petitioners/students is not based on mere surmises and conjectures. The submission of the learned counsel for the petitioners that as on today, the petitioners have only been accused of commission of offences and until the trial has concluded, they should not be put off from attending classes and in the event of acquittal of the criminal charges their education and career would be affected, though appears to be more on sympathetic grounds, this Court is of the considered view that there are sufficient materials to suspend the petitioners from MBBS course and prevent them from attending the classes.
25. In Dinesh Bhat v. Sri Mahaveera College reported in 1990 (3) KarLJ 178, the Karnataka High Court considered a case of serious misconduct of misbehaving of a student with a girl and presenting a stranger before the Principal to believe that if he was the father of the student. There were other charges also. Though the High Court in the reported case, considered the plea of the petitioner therein, after considering the enquiry officer's report, the observation regarding the importance of education and discipline to be maintained, is worth reproduction, "12. Education is said to be an ornament in prosperity and a refuge in adversity. Forging, abetting, impersonation and atrocious behaviour with a girl, particularly in the presence of the Reader and Head of the Department of Chemistry of the same College certainly do not commend a sympathetic or liberal treatment to the petitioner. These propensities of the petitioner portend worst things to come if not put down with an iron hand. To bestow sympathy and compassion in a case like this would amount to placing a premium on indiscipline and in indirectly giving stimulus to indiscipline and misbehaviour by potential trouble shooters. The learned Counsel for the respondent was fully justified in submitting that one rotten egg in a basket is likely to spoil the remaining ones, and it would not be in the interest of either the students or the institution to allow the petitioner to continue his course in the same College. I must observe that this is a case in which neither spasmodic sentiments nor misplaced sympathy is warranted. I must also observe that the atmosphere in academic centres of learning should not be allowed to be polluted and that high standards are required to be maintained allowing no room for undermining the place of learning. One relaxation will lead to another and ultimately the values will get diluted and there will be no place for academic discipline." (emphasis supplied)
26. If the contentions of the learned counsel for the petitioners that no action can be taken against the petitioner, even if there is a final report from the Fingerprint and Document experts, till the trial is concluded, are to be accepted, then the very purpose of obtaining the thumb impressions/finger prints signatures, on various forms is defeated and the whole process of verification would be a fait accompli and it would be a useless exercise. The prospectus makes it clear that the college administration with an object of preventing any malpractice in the entrance examination and consequently, admission to the course, and to maintain the standards of medical education, for the progress of the nation and to get the best among the meritorious students, no matter from where they belong to serve the citizens, particularly, in rural areas, has incorporated specific guidelines, such as, taking the signatures and thumb impressions in various forms. Considering the object and the purpose of incorporating such stringent guidelines, for the purpose of maintaining the standards of medical education, particularly, in an institution of national importance, breach of the terms and conditions, with an intention to secure admission cannot be likely be dealt with and in such circumstances, it is suffice to find out as to whether there are sufficient materials available with the college administration to place the petitioners and others under suspension. In this context, this Court is also of the view that the jurisdiction is confined, only to the extent of adjudging as to whether the college administration has acted illegally or has omitted any relevant factors to be taken into consideration or whether the course of action taken by the institution is one, which no reasonable man would have taken and whether the action taken is arbitrary or not. In matters relating to exercise of administrative discretion, particularly, with educational authorities, the jurisdiction of the Courts is limited only to the abovesaid aspects. Once the educational authorities have taken a decision to place the students under suspension, for maintaining the academic standards of the institution, pending trial/investigation into a serious crime of impersonation, the High Court would not sit in over the judgment of the decision taken by them. The petitioners and other students charged for the offences of cheating/impersonation, have to undergo the trial. At this juncture, two students alleged to have involved in the act of impersonation have absconded to avoid trial. Of course, during trial, if they continue to remain under suspension, they would lose their attendance and classes, but at the same time, viewed from other angle, maintenance of standards in medical education and prevention of fraud in securing medical admission and that too, in an institution of national importance is more important. The magnitude of the number of persons, who have written their entrance examination for admission in various venues across the country, would itself speak for the value of medical education in the second respondent-Institution and any admission gained by impersonation/cheating has to be viewed seriously. The materials available on record are sufficient to suspend the petitioners from the college. When there is a disputed question of fact with regard to the identity of the persons, the Court under Article 226 of the Constitution of India has very limited jurisdiction and the same cannot be adjudicated, when the Criminal Court has seized of the matter.
27. The contention that the standard of evidence required for suspending a Government servant for any disciplinary proceedings, already initiated or under contemplation should be different, from suspending a student from an educational institution, for the reason that the career of the students would be affected, cannot be countenanced for the simple reason that, in both the proceedings, the principle that is followed for arriving at the finding of misconduct or malpractice is, preponderance of probability and the 2nd respondent is being an institution of national importance, has arrived at the subjective satisfaction, as to whether the petitioners should be permitted to undergo the MBBS course on the basis of an authentic report from the police, regarding their culpability. Materials collected by the investigating officer cannot be said to be vague or irrelevant or extraneous to the serious charge of impersonation in the entrance examination. The further contention of the petitioners that the materials available on record are are unconfirmed and therefore, no action can be taken, also cannot be countenanced for the reason that, it is not the law, that only after the conclusion of the trial or completion of the disciplinary proceedings initiated against the petitioners and other students, suspension can be invoked. It is well known that suspension is only an interim measure, thereby the rights of the Government servant and in the instant case, the student's right to continue the course, is temporarily suspended, till the disposal of the criminal proceedings initiated against them. The decision taken by the college authorities in suspending the petitioners cannot be said to have been made without any basis.
28. In Kumar Bhenu Gopal v. The Jharkhan Combined Entrance Competitive Examination Board and Ors., reported in 2004 (1) BLJR 374, the Hon'ble Mr. Justice S.J.Mukhopadhaya, has considered a case, where the petitioner has come out successful in the written examination of Jharkhand Combined Entrance Competitive Examination Board, 2003 and he was called for counselling. He appeared before the Counseling Board on 3rd September, 2003 at 10 A.M. when he was asked to sign a declaration and was also asked to put his signature both in English and Hindi at several places where he signed. All of his original certificates including original admit card, original mark sheet, original certificate of matriculation examination etc. along with six passport size photographs duly attested and residence certificate and character certificate from the head of the Institution last attended were also deposited. The petitioner therein having submitted residential certificate of ten years issued by the S.D.O., Sadar, Ranchi, was told to produce the residential certificate of 15 years as per the guide line. According to petitioner, he obtained certificate from the Circle Officer, Ranchi, but could not obtain certificate from S.D.O., Sadar, Ranchi on the date (4th September, 2003), so he applied in writing to , the Controller of Examination to grant time till 5th September, 2003 to produce 15 years residential certificate. The said certificate was obtained by him on 5th September, 2003 which he intended to submit in the office of J.C.E.C.E. Board on the same date i.e. 5th September, 2003 when the counseling of reserved category was going on, but no admission letter was handed over to him. The next date Le. 6th September, 2003, a news item was published that one F.I.R. has been lodged against 16 persons out of which three were shown absconding. According to petitioner, from the newspaper, he could come to know that his name was also shown in the F.I.R. and he was shown to have absconded. The petitioner therein claimed to be the genuine candidate, appeared in the written examination and secured good result and ranked 25th in the merit category. He alleged malafide against the respondents and stated that with ulterior purpose, a false F.I.R. had been lodged against him. Though the petitioner has further alleged bungling/malpractice during the counseling on the basis of knowledge from a so-called reliable source, but nothing was disclosed in the Writ Petition, to hold mala fide against any one.
29. The respondents therein contended that from the handwriting verification check slip (Annexure-C to the counter affidavit), the Professors, who were members of the Counseling Board, gave a note, which is as follows:-
"It appears to be a case of impersonation. Name of examination centre and the name of school of Class X passing is suspicious".
The note was given on 3rd September, 2003 itself. F.I.R. was lodged against the petitioner therein and some others. The charges of impersonation during written examination have been levelled. In the aforesaid factual background, the Court held that, "there being a disputed question as to whether the writ petitioner actually appeared in the written examination or not, the matter being under investigation and pending consideration before a criminal Court of competent jurisdiction, it is not desirable for this Court to give any opinion relating to allegation made by the respondents, nor it is desirable to hold malafide against any person. For the same reason, it is not desirable to issue any writ of mandamus for admission of petitioner in the 1st year M.B.B.S. course and no relief can be granted."
30. The above reported order was appealed before the Division Bench of Jharkhand High Court and the order of the Single Judge was confirmed in Kumar Bhenu Gopal v. The Jharkhan Combined Entrance Competitive Examination Board and Ors., reported in AIR 2004 Jhar 110.
31. On the facts and circumstances of the above case, the allegation of mala fide on the part of the second respondent is liable to be rejected. There is no merits in the Writ Petition. For the abovesaid reasons, the Writ Petition is dismissed. No costs.
32. Reverting back to the case on hand, considering the apprehension of the students that the trial may take a long time and in the meanwhile, their education would be affected, the Inspector of Police, D'Nagar Police station, Puducherry, is directed to take necessary steps to secure the accused said to have been absconding and if not, possible within a reasonable time, take necessary steps to split up the trial in respect of the petitioners and proceed further. On receipt of the necessary application for splitting of the trial, Learned Judicial Magistrate No.II, Puducherry is directed to take up the trial as expeditiously as possible, on day-to-day basis. Registry is directed to issue a copy of the of this order to the Inspector of Police, D'Nagar, Puducherry and the Learned Judicial Magistrate No.II, Puducherry, for compliance of the above directions.
.01.2011 skm/nb S. MANIKUMAR, J.
skm To
1.The Director, Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER), Danvantri Nagar, Puducherry-605 006.
2.The Dean, Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER), Danvantri Nagar, Puducherry-605 006.
W.P.Nos.8063 and 8600 of 2010 .01.2011