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Allahabad University Teachers' Association and Ors. Vs. the Chancellor, Allahabad University, Lucknow and Ors. (27.04.1982 - ALLHC) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 15146 of 1981
Judge
Reported inAIR1982All343
ActsConstitution of India - Article 226; Uttar Pradesh Universities Act, 1973 - Sections 13(1), 29(3) and 68; Allahabad University Unfair Means Ordinance, 1981
AppellantAllahabad University Teachers' Association and Ors.
RespondentThe Chancellor, Allahabad University, Lucknow and Ors.
Appellant AdvocateM.C. Gupta, Adv.
Respondent AdvocateSunil Gupta, ;Standing Counsel, ;R.R. Agarwala, ;H.S. Nigam and ;B.D. Agarwala, Advs.
Cases ReferredS. P. Gupta v. President of India
Excerpt:
.....act, 1973 and unfair means ordinance 1.4 - vice chancellor has power to appoint unfair means committee - in its absence vice chancellor has power under section 13 (1) (e) to appoint committee on behalf of examination committee. - - previously the executive council of the university had decided that students found guilty of attempting to cheat or cheating in the examinations should be subjected to mild punishment like the imposition of fines. in the result, the entire effort made by the teachers to eradicate the evil of unfair means from the examination would be defeated. 4 is concerned, they will be satisfied if the legal position is made clear so that the impugned chancellor's order may not have widespread implications. 9. having heard learned counsel on this point, we are..........sent to the chancellor the ordinance on unfair means and submitted that the finding of the unfair means committee that respondent no. 4 was guilty was valid and according to law. the chancellor, however, disagreed. he held that the fourth respondent was not guilty of using or attempting to use unfair means at the examination.6. after the chancellor's order became known to the students community of the university, the students became highly agitated. they demanded from the university authorities that the cases of majority of 1,300 candidates who had been found guilty of using unfair means and were punished were similar in nature to respondent no. 4 and the university should, in conformity with the chancellor's order, recall the punishments imposed on them. the teachers also became.....
Judgment:

Satish Chandra, C.J.

1. This writ petition questions the validity of an order of the Chancellor, Allahabad University, passed on Sept. 17, 1981, allowing a representation of Sri Shailendra Kumar, respondent No. 4. Sri Shailendra Kumar filed a representation against the decision of the Allahabad University cancelling his result of B. Com. (Part II) Examination held in 1981 on the ground of use of unfair means. In the impugned order the Chancellor held that Sri Shailendra Kumar cannot be held guilty of having used or attempted to use unfair means. His representation was allowed and the decision of the University cancelling his examination was quashed. The petitioners submit that the Chancellor's order is erroneous on its face and is based on a misapprehension of the relevant ordinances of the University.

2. The respondents have raised a preliminary objection that this petition is not maintainable. The petitioners are not persons aggrieved at the Chancellor's order. They have no locus standi to come to Court under Article 226 of the Constitution,

3. It will be appropriate to consider the maintainability of the writ petition before entering into its merits.

4. The first petitioner is the Allahabad University Teachers' Association. Petitioners 2 to 15 are the teachers of the University. They are also members of the Allahabad University Teachers' Association, the first petitioner. The petitioners allege that in recent years the image of the University has been considerably sullied by the wide spread use of unfair means by students in the examination of University. Mass copying, intimidation of invigilators, violence and hooliganism at the examinations have completely jeopardised the sanctity of the examinations and the academic worth of the University. The petitioner No. 1 has been concerned about the situation for the last many years. It has been constantly waging a war against the menace of unfair means. Previously the Executive Council of the University had decided that students found guilty of attempting to cheat or cheating in the examinations should be subjected to mild punishment like the imposition of fines. It did not curb the evil use of unfair means. The teachers acting as the invigilators at the examination were embarrassed and humiliated when the students who were found using unfair means whipped out currency notes from their pockets and offered them to invigilators saying 'you can keep it as it will save us the trouble of paying it to the University later on.' The teachers of the University staged a silent march in the campus of the University on April 11, 1979. The President of the Universitv Teachers Association went on a fast for the purification of the University. The Association passed resolutions that if the use of unfair means on a large scale was not controlled and checked the teachers would not act as invigilators. In 1980, the teachers started demanding that the ordinance against use of unfair means be enacted. Ultimately, in January 1981, the said ordinance was made. This was the result of the determination and sincerity of the teachers to fight the evil of unfair means from the University examinations. The petitioners were impelled by the motive of maintaining high academic standards and the sanctity of examinations of the University.

5. As a result of the efforts made by the teachers of the University, the Ordinance was enforced in the examination held in 1981. A large number of students stated to be about 1,300 were caught using unfair means and punished by the University authorities. One of such candidates was respondent No. 4, Shailendra Kumar. He was also found guilty of using unfair means and his examination of 1981 was cancelled. He filed a representation before the chancellor. On his representation, the Chancellor called for the comments of the University. The University authorities maintained that respondent No. 4 was guilty. It sent to the Chancellor the ordinance on unfair means and submitted that the finding of the Unfair Means Committee that respondent No. 4 was guilty was valid and according to law. The Chancellor, however, disagreed. He held that the fourth respondent was not guilty of using or attempting to use unfair means at the examination.

6. After the Chancellor's order became known to the students community of the University, the students became highly agitated. They demanded from the University authorities that the cases of majority of 1,300 candidates who had been found guilty of using unfair means and were punished were similar in nature to respondent No. 4 and the University should, in conformity with the Chancellor's order, recall the punishments imposed on them. The teachers also became concerned with these developments because they felt that the reasons recorded by the Chancellor in his order were entirely invalid and contrary to the Ordinances and if the University authorities act thereon the majority of the 1,300 students who were caught and punished would go scot-free. In the result, the entire effort made by the teachers to eradicate the evil of unfair means from the examination would be defeated. The Association met several times to consider the matter and passed a number of resolutions.

7. Soon thereafter the Government announced that such students of Allahabad University against whom action has been taken regarding use of unfair means in the examinations could make representations to the Chancellor under Section 68 of the Universities Act and that the delay in filing such representations will be condoned for a period of fifteen days. The petitioners held meetings, passed resolutions expressing concern at these moves and feeling that this will have a devaluing effect on the moral standards of the students, they addressed a representation to the Chancellor. They went and met the Chancellor in a delegation but the Chancellor expressed his inability to reconsider his order passed on the representation of respondent No. 4. The Association again held a meeting at which it was decided unanimously that the matter be taken to Court. It was apprehended that the Chancellor's order is likely to create re-emergence of large scale abuse of unfair means at the examinations which will be destructive of the academic standards of the University and would cause great harm to the reputation of the teachers who were members of the Teachers' Association. The petitioners apprehended that the order of the Chancellor, if it continues to have force, will precipitate a crisis and vitiate the academic atmosphere not only of the Allahabad University but nearly all the Universities of the State of Uttar Pradesh. It has also been stated that educationists and journalists of this country have taken a very serious view of the matter. The petitioners have filed copies of several articles that have appeared in various newspapers and magazines. As a result of the Government's decision to condone the delay, a large number of representations have been made to the Chancellor against the action taken by the University against the students found using unfair means, In this situation, the Teachers' Association and some of its members thought it necessary to file the present writ petition to get judicial declaration of the correct legal position as to the interpretation of the ordinance relating to unfair means.

8. Sri S. P. Gupta, learned counsel for the petitioners, in the course of his arguments, stated that the petitioners are not keen to insist on this Court's interference with the Chancellor's order so far as respondent No. 4 is concerned, they will be satisfied if the legal position is made clear so that the impugned Chancellor's order may not have widespread implications.

9. Having heard learned counsel on this point, we are not satisfied that the petitioners are mere busy bodies or complete strangers. It is evident that the petitioners who are the teachers of the University are seriously and honestly interested in the maintenance of the high standards of the University and in the sanctity of its examinations. They are genuinely perturbed at the large scale copying that has become a menace in the University Examinations. During the last several years they have taken determined and realistic steps for the eradication of this evil. There can be no doubt that they have a vital interest in the maintenance of the high standards of the University as well as the sanctity of the examinations held by the University on the basis of which it grants degrees. If as alleged by the petitioners, the Chancellor's order has completely misconceived the relevant ordinance and is likely to have an adverse effect upon the eradication of large scale use of unfair means, they certainly have an interest and concern deeper than a busybody, and, as held by the Supreme Court in S. P. Gupta v. President of India (AIR 1982 SC 149) they cannot be told off at the gate.

10. The Ordinance 1.6A (i) deals with award of punishment. For possession of unauthorised material, the punishment awardable is cancellation of the result of the candidate in the examination in question. Under Clause (b) of Ordinance. 1.6 'for transcribing any part or the whole of it the punishment awardable is cancellation of the result of the candidate in the examination in question and department from the subsequent examinations of the next academic session. The Unfair Means Committee found the fourth respondent guilty of the charge of possession of unauthorised material. It did not find him guilty of the charge mentioned in Clause B, namely, for transcribing any part or the whole of the unauthorised material.

11. The Chancellor in his order has observed 'the report of the examiner is to the effect that the petitioner could have used the material in reply to questions 5 and 10. He did not attempt question No. 5 and did not utilize the material in answering question No. 10. The University authorities have not made effort to find out if the chits were in the handwriting of the candidate. He did not utilise the material in answering the questions. This goes to show that in all probability the petitioner had no intention of using or attempting to use unfair means. In these circumstances, the petitioner Sri Shailendra Kumar cannot be held guilty of having used or attempted to use unfair means.'

12. The Chancellor's order was based upon the fact that it was not established that the chits were in the handwriting of the candidate and that he did actually utilise the material in answering the questions and, therefore, he had no intention of using or attempting to use the chits. The petitioners submit that the viewpoint expressed by the Chancellor was entirely irrelevant. The Chancellor's order was based on a complete misapprehension of the Unfair Means Ordinances.

13. The Ordinance on unfair means defines 'unfair means'. It says :

'1.2. (a) 'Unfair means' A candidate shall be deemed to have used 'unfair means' if the candidate is in possession of unauthorised material or if he has transcribed in part or the whole of the material, or ............'

From this definition, it is apparent that if a candidate is found in possession of unauthorised material he will be deemed to have used unfair means. In the second place, if a candidate has transcribed the unauthorised material then also he will be deemed to have used unfair means. It is thus clear that mere possession of unauthorised material is using unfair means. The Unfair Means Committee had found the fourth respondent guilty of possession of unauthorised material and on that account it held him to have used unfair means and cancelled his examination. For using unfair means by possessing unauthorised material it is not at all necessary that the candidate should have transcribed any part or whole of the unauthorised material. Transcribing is an independent head of charge of using unfair means. The fact that the fourth-respondent did not, in fact, utilize the unauthorised material in answering questions or even the fact that probably he had no intention of using unauthorised material in answering the questions was wholly immaterial and irrelevant to the question whether he was in possession of unauthorised material and on that account he will be deemed to have used unfair means. To the charge of having been found in possession of unauthorised material and so will be deemed to have used unfair means, the fact that the candidate had no intention of using the unauthorised material is irrelevant and cannot lead to the conclusion that the candidate cannot be held guilty of having used or attempted to use unfair means. The fact that he did or did not utilize the material would have been relevant if the charge had been of transcribing the unauthorised material mentioned in Ordinance 1.6B (i). But here the charge was under Ordinance 1.6A (i), namely possession of unauthorised material.

14. The Chancellor seems to have been impressed by the submission that it was no one's case that the chits were recovered from the person of the candidate and that it had not been found that the chits were in the handwriting of the candidate. Again, both these aspects are neither relevant nor material.

15. Ordinance 1.2 (b) defines 'possession of unauthorised material' It says.--

'(B) Possession of unauthorised material .--

'Possession of unauthorised material' by a candidate shall mean having any unauthorised material on his person or desk or chair or table or at any place within his reach in the examination hall............'

16. Possession of unauthorised material is not merely having it on his person. Such possession can also be inferred if it is on the candidate's desk, chair or table or at any place within his reach in the examination hall.

17. The two chits were found under the table. To the query 'were these recovered from your desk or chair?' the fourth respondent answered 'yes', from the side gk cxy ls Reading the answer along with the question, it is clear that the fourth respondent admitted that the chits were recovered from the side of his desk. According to the invigilator's report they were found from under the table. It is thus clear that the chits wera recovered from under the fourth respondent's desk (table). They were henca not found 'on' his desk, chair or table, but 'under' his desk/ table. Such a place, namely, under his desk is obviously within reach of the candidate. Therefore it cannot be said that the examination committee committed any error in holding the fourth respondent guilty of possession of unauthorised material. In his order, the Chancellor has mentioned the petitioner's submission that the chits were not recovered from him but he has not given any finding that the fourth respondent was not in possession of unauthorised material as defined in the Ordinances. In our opinion, the examination committee could validly reach the conclusion that the candidate was in possession of unauthorised material.

18. The Chancellor has observed that the University authorities have not made efforts to find out if the chits were in the handwriting of the candidate. Learned counsel for the petitioners submitted that the question whether the chits were in the handwriting of the candidate was irrelevant. Even if it was not in the handwriting of the candidate, yet it will be deemed to be 'unauthorised material' Ordinance 1.2 (C) defines 'unauthorised material' as under:--

'(C) Unauthorised material: 'Unauthorised material' shall mean any material whatsoever, related to the subject of the examination, printed, type-written or otherwise, on paper, cloth, wood or other material, in any language or in the form of a chart, diagram, map or drawing.'

Under the definition, even a printed or type-written material is within the ambit of the term 'unauthorised material' the only condition being that the material should relate to the subject of the examination. On the eventful day, the subject was 'Industrial and Labour Law.' The head examiner's report shows that the chits could have been used in reply to questions 5 and 10. Hence it was clear that the material, namely, the chits related to the subject of the examination. In view of this undisputable position, it could not but be hold that the chits were unauthorised material The fact whether they were or were not in the handwriting of the candidate, was neither material nor relevant.

19. In the comments furnished by the University, it submitted to the Chancellor a copy of the Ordinance and tried to explain them in order to sustain the finding of the Unfair Means Committee that the respondent No. 4 was guilty of the charge. In our opinion, the Chancellor misapprehended the import and effect of the Ordinances.

20. Learned counsel appearing for the fourth respondent raised several other questions which were neither raised by the fourth respondent in his representation and which unfortunately have not been raised in the writ petition either by way of a point taken in the counter affidavit or in any other manner. For instance, he submitted that the ordinance on unfair means was not applicable to the examinations of 1980. This has never been the case of the fourth respondent up-till now. The University authorities, the fourth respondent as well as the Chancellor have all proceeded on the basis that the unfair means ordinance framed on Jan, 22, 1981 was applicable to the examinations held after Jan. 22, 1981. The mere fact that the examination held in March or April, 1981 was the examination which should have been held in 1980 and has been postponed is besides the point. If the examination is held after the ordinance has come in force on Jan. 22, 1981, it will be governed by the Unfair Means Ordinances. Though we enquired, but none of the counsel appearing for the respondents or learned Standing Counsel appearing for the University was able to point out any other date from which the aforesaid Ordinances on unfair means came in force.

21. Learned Counsel then submitted that Ordinance 1.4 was ultra vires Section 29 (3) of the U. P. State Universities Act, 1973. Ordinance 1.4 provides:--

'1.4 Punishment prescribed in these Ordinances (no 1.1 to 1.6) shall be awarded by a committee of not less than five teachers appointed by the Examinations Committee or by the Vice Chancellor acting on behalf of the former. The quorum of this Committee shall be three.'

22. Learned counsel stated that the Unfair Means Committee which took action against the fourth respondent was, in fact, appointed by the Vice-Chancellor. According to him, the Vice-Chancellor had no jurisdiction because delegation of this power by ordinance 1.4 was invalid as it was in contravention of Section 29 (3) of the Act. Under Sub-section (3) of Section 29, the Examinations Committee may appoint such number of sub-Committees as it thinks fit, and in particular, may delegate to any one or more persons or sub-committees the power to deal with and decide cases relating to the use of unfair means by the examinees. Section 29 deals with the Examinations Committees. The question of Examinations Committee appointing subcommittees would arise only if there was, in fact, an examination committee, The respondent No. 4 has not any where in his affidavit stated that there was an examination committee so that it alone could appoint a sub-committee. Learned counsel for the petitioners submitted that according to his instructions there is, in fact, no examinations committee in existence as yet. If an examination committee has not been constituted, then the power of the Vice-Chancellor given in Section 13 (1) (e), namely, that the Vice-Chancellor shall be responsible for holding and conducting the examinations properly ............. would come into play and under this power the Vice-Chancellor could validly constitute the Unfair Means Committee. When the basic facts, namely, whether the examinations committee had been constituted is itself not clear, the point of vires of Ordinance 1.4 cannot legitimately be raised. Further even if it be assumed that an examinations commitee was in existence there is nothing in Section 29 (3) which ousts the powers conferred on the Vice-Chancellor under Section 13 (1) (e). Both these provisions deal with the holding of proper examinations. They are to be read harmoniously with each other. So read, the conferment of power by Ordinance 1.4 on the Vice-Chancellor to appoint a committee on behalf of the Examinations Committee cannot be said to be ultra vires.

23. It was also stressed that the Unfair Means Sub-Committee should have given an opportunity of oral hearing to the fourth respondent. The rules of natural justice do not always require oral hearing. The facts were not so complicated that they could not be understood or found without an oral hearing.

24. It was faintly urged that the Unfair Means Committee's decision was bad because no reasons have been given. No provision requires the committee to write a detailed judgment. The facts were not very complicated. The committee held the fourth respondent guilty of the charge and awarded the prescribed punishment. We are not satisfied that the order of the Unfair Means Committee can be castigated on this account. Further, the Chancellor did not quash the committee's order on any of those grounds.

25. Sri S. P. Gupta, learned counsel for the petitioners, stated at the Bar that the petitioners are interested in maintenance of high academic standards and the sanctity of the examinations of of the University and are not particularly gunning against respondent No. 4: In view of this statement of petitioners' intent, we are not inclined to set aside the Chancellor's order impugned in the present writ petition. We have indicated the true import of the relevant ordinances. We leave the matter to the discretion of the Chancellor. He may, if he so thinks fit, reconsider his order.

26. The writ petition is disposed of accordingly. The parties may bear their own costs.


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