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Ashok Kumar Sinha Vs. Lucknow University, Lucknow - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. 2405 of 1976
Judge
Reported inAIR1977All132
ActsUttar Pradesh State Universities Act, 1973 - Sections 52(1)
AppellantAshok Kumar Sinha
RespondentLucknow University, Lucknow
Appellant AdvocateG.K. Malhotra, Adv.
Respondent AdvocateJ.B. Srivastava, Adv.
DispositionPetition allowed
Excerpt:
.....his possession - petitioner denied ownership of scale - no evidence provided regarding finding of scale from possession of petitioner - question for which scale may have been used answered wrongly by petitioner - held, ordinance no. 2 not complied with and result of petitioner cannot be held back. - - he contended that the matter was referred to the unfair means committee which recorded the finding that the material recovered from the candidate was relevant to the question paper of the day and recommended cancellation of the entire examination in b. in this context we would like to mention that the committee failed to take note of a material piece of evidence which appears to support the defence rather than the charge that the scale was recovered from the petitioner's possession. 5...........notice that there was complete absence of any evidence to show to a reasonable certainty that the scale in question was found on the person or table of ashok kumar sinha and that his defence that the same was found lying just behind his seat was incorrect. there is an express requirement of ordinance no. 2 that the invigilator or the examiner conducting the examination or the proctor or assistant proctor on duty who may 'have found the candidate with books, notes, papers or similar material relating to the question paper of the day on his person or table when he is answering the paper should report the fact to the superintendent. it is significant to note that the report submitted to the superintendent at the examination centre (annexure a-1) did not say whether the scale was found on.....
Judgment:

Trivedi, J.

1. This is a petition under Article 226 of the Constitution of India filed by Ashok Kumar Sinha who was admitted as a student in B. Sc. Part I at Lucknow Christian College, Lucknow and in accordance with the rules and regulations appeared at the annual examination of B. Sc. Part I conducted by the Lucknow University, opposite party No 1 with Roll No. 570 for the year 1975-76. Lucknow Christian College was one of the centres for conducting annual examination of the opposite party No. 1, Lucknow University, and the petitioner had appeared at the said examination from the aforesaid centre. On 22-4-1976 the petitioner appeared for Paper No. 2 Inorganic Chemistry and when he was busy in answering the question paper, he was challenged by the checking squad which, according to the petitioner's contention, found a scale lying on the floor behind the petitioner's seat. Something was written on its back. Petitioner's statement was obtained in writing forthwith in which he took the plea that the scale was not recovered from his possession and that it was found lying just behind his seat. He disowned the scale. Thereafter the petitioner received a notice (Annexure 1) to show cause why the result of his examination should not be cancelled for being in possession of material pertaining to the question paper. To this 'he sent a written reply (Annexure 2). By memo dated 19th June 1976 the petitioner was informed by the Registrar, Lucknow University that the entire result of the said examination was cancelled for being found guilty of violating the instructions pertaining to the examination. The petitioner prays for certiorari for quashing of the order of 19th June, 1976 (Annexure 3 of the writ petition) and also for mandamus directing the opposite parties to declare the result of his B. Sc. Part I Examination for the year 1976.

2. A counter-affidavit has been filed for the Lucknow University whose contention is that a scale was found in possession of the petitioner containing writing on its back which was relevant for answering question No. 11 (iv) of the paper in question. The University relies on a report of the Superintendent at the Examination Centre to the effect that the scale was found with the candidate. This report was contained in a prescribed form and is Annexure A-I to the counter-affidavit Reliance is also placed on the report of the Expert Annexure A-2 to the effect that the scale contained matter which related to question No. 11 (iv) which was attempted by the petitioner in the answer book, but the material written on the back of the scale was not used. He contended that the matter was referred to the Unfair Means Committee which recorded the finding that the material recovered from the candidate was relevant to the question paper of the day and recommended cancellation of the entire examination in B. Sc. Part I taken by the petitioner. It is relevant in this connection to point out that the conduct of the examination is governed by Ordinances of the Lucknow University. It is common ground that no fresh Ordinances have been made since coming into force of U. P. State Universities Act (10 of 1973) hereinafter referred to as the Act. Section 52 (1) of the Act, however, provides that the First Ordinance of each existing University shall be the Ordinances as in force immediately before the commencement of this Act in so far as they are not inconsistent with the provisions of this Act.'

3. Ordinance No. 2 relating to conduct of examination is printed at page 61 of the Lucknow University Ordinances and Regulations, 1970 and reads as follows:

'A candidate found by the invigilator or the Examiner conducting a practical or oral examination or the Proctor or the Assistant Proctor on duty with books, notes, papers or similar material related to the question paper of the day on his person or table when he is answering the paper; or a candidate found acting in a manner which in the opinion of the invigilator or the examiner conducting a practical or oral examination or the Proctor or the Assistant Proctor on duty is liable to give unfair advantage to him or to another candidate shall forthwith be challenged by such Invigilator, Examiner, Proctor or Assistant Proctor who shall ask for a signed statement from the candidate on the prescribed form. Such Invigilator, Examiner, Proctor or Assistant Proctor shall submit a report to the Superintendent stating full facts of the case along with the statement of the candidate, if any, and papers, books and other material recovered from the candidate, if any.'

Ordinance No. 5 at page 62 provides as under :--

'A candidate found guilty of conduct under Ordinances 2 and 3 above shall be expelled from the Examination of that year and may, in addition be debarred for such period not exceeding the two following years, as the Vice-Chancellor may, after considering the recommendation of the Results Committee determine.'

4. On hearing arguments of Sri G. K. Mehrotra appearing for the petitioner and Sri. Jagat Bahadur Srivastava appearing for the Lucknow University, we find that the order cancelling the petitioner's examination suffers from a number of serious infirmities. A perusal of Annexure 1 shows that the charge for the impugned action against the petitioner was that he was in possession during the examination hours of a scale containing objectionable writing. Right from the very beginning the petitioner contested that this scale was recovered from his possession we notice that there was complete absence of any evidence to show to a reasonable certainty that the scale in question was found on the person or table of Ashok Kumar Sinha and that his defence that the same was found lying just behind his seat was incorrect. There is an express requirement of Ordinance No. 2 that the Invigilator or the Examiner conducting the examination or the Proctor or Assistant Proctor on duty who may 'have found the candidate with books, notes, papers or similar material relating to the question paper of the day on his person or table when he is answering the paper should report the fact to the Superintendent. It is significant to note that the report submitted to the Superintendent at the Examination Centre (Annexure A-1) did not say whether the scale was found on the person or on the table of the petitioner. Against Item No. 4 of this report Annexure A-1, there is simply a mention 'one scale written on its back'. The person who recovered the scale and who may have challenged the petitioner and who ultimately reported the matter to the Superintendent in accordance with Ordinance No. 2 was under a clear duty to specifically say in this report whether the scale was recovered from the person or from the desk of the petitioner. Not only the report is completely silent on this material specification, but the Invigilator or Examiner or Proctor or Assistant Proctor, whosoever may have submitted the report initially to the Superintendent did not even record that the scale was found in possession of the petitioner. On the other hand against Item No. 4 this report (Annexure A-1) laconically said only this 'caught by flying squad' which was also the averment contained in the petition and would indicate that the scale was recovered by some unknown persons belonging to the flying squad who have challenged him. At any rate the report completely fails to disclose as to whether the scale so recovered was found in the petitioner's possession by a Invigilator/ Assistant Proctor/the Chief Proctor or by the Proctor. The report was signed by three persons, namely, G. Krishna as Invigilator, N. Sajjad as Assistant Proctor and P. P. Sinha, Chief Invigilator, which shows that the report was prepared in a most haphazard and irresponsible manner and in complete disregard of the instructions contained in Ordinance No. 2. The Ordinance requires that the report should be submitted to the Superintendent by a person who actually finds an offending book, paper or other material either on the person or the table of the candidate and who challenged him. It further required that the report of such a person who may either by Invigilator/Examiner, Proctor or Assistant Proctor should give full facts of the case. But in the present case a perusal of the report Exhibit A-1 shows that it cannot be said to contain a full narration of the facts, for instance it does not disclose the name of the specific individual by whom the scale was actually recovered from the petitioner, whether it was found on his person or on his table whether such person was Invigilator/Examiner/Proctor or an Assistant Proctor and finally it does not disclose the name of the person who took responsibility for submission of the report to the Superintendent, inasmuch as it was signed by three persons, as observed above, and finally by the Superintendent. It follows, therefore, that a full report was not prepared in accordance with the instructions contained in Ordinance No. 2 nor was such a report, as required by Ordinance No. 2, submitted to the Superintendent, inasmuch as the report signed by the Invigilator, Assistant Proctor and the Chief Invigilator did not specifically record that the scale was recovered or found in possession of the petitioner. Therefore, the final report of the Superintendent Sri B. C. Saxena at the Examination Centre to the effect that the scale was found with the candidate was entirely without foundation because admittedly the Superintendent was not present at the time of recovery of the scale. That being so, there was next to no evidence before the Unfair Means Committee on the question whether the scale was found in possession of the petitioner or not and the finding of that committee to that effect is, therefore, a finding without any evidence and liable to be set aside by this Court. Apart from this, the report of Unfair Means Committee does not disclose that it applied its mind to the question as to whether the scale was actually recovered from the possession of the petitioner. It does not seem to have given any thought to the petitioner's defence that the scale did not belong to him and that it was found lying behind his seat. In this context we would like to mention that the Committee failed to take note of a material piece of evidence which appears to support the defence rather than the charge that the scale was recovered from the petitioner's possession. The report of the Expert (Annexure A-2) shows that the matter written on the back of the scale pertains to question No. 11 (iv) and yet it was not utilised by the petitioner in attempting question No. 11 (iv). We called the Expert Sri T. N. Srivastava, Head of the Chemistry Department, who prepared this report (Annexure A-2) and he candidly accepted before us that the answer to question No. 11 (iv) given by the petitioner was wrong and that the answer would have been correct if he had actually used the material noted at the back of the scale. Now if the scale was actually in the petitioner's possession, then in all probability the petitioner would have made use of the matter noted on the scale and the fact that this material was not used in answering question No. 11 (iv) is consistent with the theory that the scale was not in the petitioner's possession but was lying on the ground. In the same connection it is worthy of note that in the prescribed form for reporting cases of use or attempt to use unfair means at the examination on which the report Ext. A-1 was drawn up contained the instruction that all material found in possession of the candidate and submitted along with the answer book should be signed by the candidate concerned and counter-signed by the Invigilator, Assistant Proctor/Chief Invigilator/ Proctor and the Superintendent. The counsel appearing for the University conceded that the scale which was recovered from the petitioner's possession and which was produced before us did not bear the counter-signatures of any of these authorities of the University and we further found that it did not contain the signature of the petitioner also which is also a highly suspicious circumstance.

5. On consideration of all these facts and circumstances we are of the opinion that the finding on the question of recovery of offensive material on the petitioner's possession recorded by the domestic Tribunal was wholly unsustainable in law, the same being unfounded on evidence. It is, therefore, liable to be set aside.

6. We allow the petition and quash the Memo issued by the Lucknow University, opposite party No. 1 dated 19th June, 1976 (Annexure 3) cancelling the B. Sc. Part I examination of the petitioner for the year 1976 by certiorari. We command the Lucknow University to examine the answer book for paper No. 2 Inorganic Chemistry for the examination of 1976 answered by the petitioner and declare his result for the said examination within one week from today. Let writ of certiorari and mandamus issue accordingly. In the circumstances of the case parties shall bear their own costs.


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