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Pyarelal Sharma Vs. University of Sagar and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 267 of 1960
Judge
Reported inAIR1961MP356
ActsMadhya Pradesh University of Saugar Act, 1946 - Sections 32; Constitution of India - Article 226; University of Saugar Ordinance - Schedule - Articles 12, 13, 14 and 15
AppellantPyarelal Sharma
RespondentUniversity of Sagar and anr.
Appellant AdvocateA.P. Sen and ;A.H. Saifi, Advs.
Respondent AdvocateB.L. Seth and ;S.L. Golchha, Advs.
DispositionPetition dismissed
Cases ReferredUniversity of Ceylon v. Fernando
Excerpt:
.....passing that examination and may also, in its discretion, debar him from appearing at the next examination. article 12 provides that any candidate detected in cheating or making use of any dishonest or unfair means in connection with an examination shall be reported to the executive council by the superintendent of the examination or by the officer, and the executive council may, if satisfied that the facts alleged are true, and disclose premeditation on the part of the candidate, expel him from the university and declare him to be not a fit and proper person to be admitted to any future examination of the university. when he does not possess the legal capacity to pass the examination, the fact that he actually passed the examination of was declared to have passed the examination is..........unfair means at the examination. the first circular asked the principals and officers-in-charge of university examinations to expel any student found using unfair means or violating the rules framed for that purpose; the expulsion was to be only for that day.it also directed that on the detection of such a case a statement of the examinee and the invigilator should be sent to the university office and the examinee should be allowed to appear for subsequent papers. the second circular of 13th may 1960, directed the persons in charge of examinations to send a complete list of such cases detected at an early date. the invigilator at the raipur centre did not send to the university the information required by the circular of 13th may 1960.in reply to the memo of the registrar dated llth june.....
Judgment:

Dixtt, C.J.

1. By this application under Article 226 of the Constitution the petitioner prays for the issuance of a writ of certiorari for quashing a decision of the University of Sagar cancelling the result of the Previous LLB. Examination taken by the applicant in May 1960 and debarring him from appearing at any supplementary examination of 1960, or at the examination to be held in 1961. The applicant also prays that the opponents be restrained from giving effect to that decision which was notified by the University on 24th August 1960 (Annexure, VI).

2. The matter arises thus. The petitioner presented himself as an examinee at the Previous LL.B. Examination of the University at the Raipur centre. The examination was held in May 1960. The results of the examination were declared on 18th July 1960. The petitioner was one of those declared as successful in the examination. It appears that on or about the 9th of May 1960 some person addressed a communication to the Registrar of the University saying that the examination at the Raipur centre was not properly conducted by the invigilators and that use of unfair means was resorted to by a number of examinees and the invigilators were unable to control them.

On receipt of this information and complaints of that nature from other sources the Registrar of the University sent a memo to the invigilator at the Raipur centre drawing his attention to the Circulars issued on 4th May 1960, and 13th May 1960 about candidates found using unfair means at the examination. The first Circular asked the Principals and Officers-in-Charge of University Examinations to expel any student found using unfair means or violating the rules framed for that purpose; the expulsion was to be only for that day.

It also directed that on the detection of such a case a statement of the examinee and the invigilator should be sent to the University office and the examinee should be allowed to appear for subsequent papers. The second Circular of 13th May 1960, directed the persons in charge of examinations to send a complete list of such cases detected at an early date. The invigilator at the Raipur centre did not send to the University the information required by the Circular of 13th May 1960.

In reply to the memo of the Registrar dated llth June 1960 he however wrote that he had not noted down the roll-numbers or names of the examinees against whom action of expulsion was taken but that he had noted all the necessary details in regard to examinees 'from whose possession notes, papers, etc., were seized and whose conduct in the examination was doubtful or suspicious'. The invigilator forwarded a list of such examinees which included the name of the petitioner. According to this report of the invigilator, on 20th May 1960 the petitioner was found in possession of some printed questions and answers which had a bearing on the question paper which he had to answer that day. The invigilator forwarded this printed matter found in possession of the applicant along with his statement which was in these words:

'Yes, I have given several paper to your honour which had been handed over by me during Exam, (sic.).'

The report of the invigilator was then placed before the Results Committee constituted by the Executive Council. The Committee found that the petitioner and some other examinees had used unfair means at the examination. The report was accepted by the Executive Council of the University and action which is now being challenged was taken by the University. The applicant did not dispute before us that on 20th May 1960 he handed over certain printed questions and answers to the invigilator. At the hearing he, however, sought to explain this by saying that the printed matter was lying on the floor close to where he was sitting in the examination-hall and that he was asked to pick up and hand it over to the invigilator; and that he himself did not bring them in the examination-hall or make any use of them.

3. The petitioner contends that the decision taken by the University is invalid, null and void for the reasons that under Articles 12, 13 and 14 of Ordinance No. 19 action can be taken against an examinee only before the declaration of the result of the examination and that once a candidate is declared to have passed an examination his result cannot be cancelled and he cannot also be debarred from appearing at any subsequent examination; that there was no material on which the University authorities could have satisfied themselves that he had used unfair means at the examination; and that no proper enquiry into the charge against him was held and he was not given any opportunity of meeting the charge.

4. The question that arises for consideration in this case turns entirely on a true construction of Article 13 of Ordinance No. 19. That article is as follows:

'Any candidate detected in using unfair means in an Examination room shall be reported to the Executive Council by the Superintendent of the Examination or by any Examiner or by any other officer or authority of the University, as the case may be and the Executive Council may, if satisfied that the facts alleged are true, but do not disclose any premeditation, disqualify the candidate from passing that examination and may also, in its discretion, debar him from appearing at the next examination.'

It is also necessary to refer to other articles of the Ordinance bearing on the subject of use of unfair means by examinees. Article 12 provides that any candidate detected in cheating Or making use of any dishonest or unfair means in connection with an examination shall be reported to the Executive Council by the Superintendent of the examination or by the officer, and the Executive Council may, if satisfied that the facts alleged are true, and disclose premeditation on the part of the candidate, expel him from the University and declare him to be not a fit and proper person to be admitted to any future examination of the University. Article 14 deals with an action that may be taken against a candidate who brings any torn paper, notes or other material to the examination-room but does not make any use thereof. Article 15 is concerned with the action that may be taken against a candidate guilty of any misconduct not falling within the meaning of the other articles of the Ordinance.

5. It will be seen that Articles 12 to 15 all deal with misconduct on the part of examinees and empower the University to take action against the defaulting candidate according to the degree of his guilt, misconduct or dishonesty. The difference between Articles 12 and 13 is this that where-as the former article deals with premeditated use of dishonest or unfair means by a candidate, Article 13 deals with a situation where there is no such premeditation.

The argument that under Article 13 action can be taken only before the declaration of the result of the examination and not afterwards is founded on the words 'disqualify the candidate from passing that examination' occurring in Article 13. It was suggested that if the candidate is to be disqualified from passing any examination, it can only be before he passed the examination or is declared to have passed that examination and that once he has passed the examination or is declared to have passed that examination, he cannot be disqualified.

We are unable to 'accede to this argument which ignores altogether the meaning and implication of the use of the word 'disqualify'. To disqualify a person for some purpose means to deprive him of the qualifications required for the purpose. The action of disqualifying is one imposing a legal incapacity on the person. The expression 'disqualify the candidate from passing that examination' therefore connotes the imposition of personal disqualification or ineligibility for passing the examination.

When a candidate is disqualified under Rule 13, he does not possess the legal capacity to pass the examination. He may de facto pass the examination; but if he is disqualified, then he is legally incompetent to pass the examination. When he does not possess the legal capacity to pass the examination, the fact that he actually passed the examination of was declared to have passed the examination is wholly immaterial for the purposes of Article 13.

It must be noted here that under Articles 12 to 15 action can be taken even against a candidate who did not attain the requisite standard at the examination and failed. For the purposes of these articles the performance of a candidate in the examination or a declaration of the performance are wholly inconsequential. What is essential is whether the candidate committed any misconduct spoken of in those articles and whether the Executive Council was satisfied that the candidate was guilty of it. If, as we think, 'disqualify' as used in Articles 13, 14 and 15 means the imposition of a legal incapacity, then it follows that the disqualification can be imposed even after the declaration (sic) candidate's result.

The declaration of the result of the performance by a candidate at an examination does not prevent the University authorities from taking any action under Articles 12 to 15. No doubt, it is desirable that action should be taken before the results are declared for the reason that if it is taken long after the declaration of the result it is liable to be questioned on the ground of mala fides. But here there is no question of any mala fide on the part of the University authorities in the action that they took against the petitioner.

The opponents were no doubt informed on 17th June 1960 of the fact that certain printed matter was seized from the petitioner in the examination-room, but they were not vigilant enough in withholding the result of the applicant. The confusion seems to have occurred because of the mistake on the part of the invigilator in sending the petitioner's answer-book of 20th May to (he examiner contrary to the directions issued by the University on 4th May 1960. The carelessness of the University authorities in permitting the petitioner's result to be published when a report had been received against him cannot, however, be regarded as an election on their part of abstaining from taking any action against him under any of the aforesaid articles.

6. The contention of the learned counsel for the petitioner that the making of an order under Article 13 is a quasi-judicial function and the petitioner should have been given a reasonable Opportunity of hearing before the passing of the order must also be rejected. On the tests laid down by the Supreme Court in Radheshyam v. State of M. P., AIR 1959 SC 107, and by this Court in Moti Miyan v. Commissioner, Indore Division, AIR 1960 MP 157, there can be no doubt that in passing an order against a candidate disqualifying him from passing an examination and/or debarring him from appearing at the next examination the Executive Council discharges an administrative function.

When the Executive Council takes action against a student under any of the articles Nos. 12 to 15, there is no question of two contending parties. There is nothing in these provisions to indicate that the Executive Council has a duty to act judicially while taking action under these articles. No such provision is to be found anywhere in the Act or in any statute or ordinance. Articles 12, 13 and 14 deal with cases of use of dishonest Or unfair means detected at the examination-hall itself resulting in the expulsion of the candidate from the examination-hall.

In Such a case the invigilator is also required to make a report of his own and take the statement of the defaulting candidate. In cases of such detection the question of any enquiry or investigation after notice to the candidate concerned does not arise. Such cases of detection speak for them-selves. It is true that the Executive Council can take action under these articles only if satisfied about the truth of the-allegations made against a candidate.

But the fact that the Executive Council has to form a subjective opinion or satisfaction on a question of fact far from showing that the action it takes under these articles is a quasi-judicial act only shows that under those articles it exercises only an administrative act dependent on a question of fact which has to be determined subjectively. The Supreme Court has no doubt pointed out in Radheshyam's Case, AIR 1959 SC 107 (supra) that in some cases it may be necessary to give an opportunity to a party to have his say before an administrative action is taken against him; but this is quite different from an enquiry and hearing necessary in the case of a quasi-judicial action which can be corrected by a superior Court by means of a writ of certiorari.

We had occasion to say in the case of Radhey Lal Maheshwari v. Dr. Dwarka Prasad Mishra, Misc. Petn. No. 117 of 1960, D/- 30-11-1960 (MP) that in cases of disciplinary -action against students there is no question of infringement of any fundamental right; that when a student joins a University he becomes a disciple and the relationship between the University authorities and him becomes one of the teacher and the taught; and that in that relationship it becomes his duty to learn, submit and obey the rules, regulations and orders of the University for the maintenance of discipline, for the conduct of examinations and for determining whether a candidate is qualified or disqualified to pass an examination.

The contention, therefore, that the Executive Council was not competent to take any action against the applicant without holding a proper enquiry and giving an opportunity of hearing to the petitioner cannot be accepted. In fact, as is evident from Annexure R-6 to the return, the petitioner admitted on 20th May 1960 itself that he had given some papers to the invigilator. The petitioner no doubt sought to say before us that the papers which he handed over to the invigilatorwere those which were lying close to where he was seated in the hall and that he did not bring them or make any use of them.

But the Dean of the Faculty of Law of the University alter considering the relevant question-paper and the answer-book of the petitioner and the printed material handed over by the petitioner to the invigilator came to the conclusion that that printed matter had a bearing on the question paper and the petitioner had made use of it in answering the question-paper.

7. Learned counsel said that the words 'if satisfied' which occur in Article 13 imported an enquiry and an opportunity of hearing to the petitioner. We do not agree. The meaning of these words has been considered in connection with several Ordinances, Regulations and Acts, and it is now well settled that where the exercise of on administrative act is made dependent by the Legislature upon the existence of contingency involving a question of fact about which the authority has to be satisfied, then the satisfaction of the authority in regard to that fact is a subjective matter and not an objective ones and the subjective satisfaction cannot be- challenged in a Court of law if the grounds upon which it has been made have a rational probative value and are not extraneous to the scope of purpose of the relevant provision, (See State of* Bombay v. Atma Ram, AIR 1951 SG 157, Tarapada De v. State of West Bengal, AIR 1951 SC 174 : and Shibban Lal v. State of U.P. AIR 1954 SC 179). No doubt, the satisfaction can be challenged on, the ground of mala fides. But, here, there is no question of any mala fides.

8. The view that in taking action against students for use of dishonest or unfair means in connection with an examination the University authorities discharges administrative function is amply supported by authorities. In Nanik Dharam-das Vazirani v. Sayajirao University, Baroda, (S) AIR 1957 Bom 246 it was held with reference to the relevant provisions of the Maharaja Sayajirao University of Baroda that the University in holding examination and in seeking to punish a student for misconduct in the examination acts as an administrative body; and that there is no obligation on the University authorities to give any opportunity of hearing before imposing a penalty upon him for misconduct and the question of giving an opportunity cannot be decided solely on the consideration that the penalty imposed would expose the career of the candidates to serious consequences.

In the Bombay case it was also observed that there was no justification for making a distinction between cases where the misconduct is discovered fin the examination-hall by the invigilators and cases where it is discovered in checking up the, answers submitted by the examinees. Such a distinction has been made by the Calcutta High Court in Dipa Pal v. University of Calcutta, AIR 1952 Cal 594 and B. C. Das Gupta v. Bijoyrajnam, AIR 1953 Cal 212.

But even in the Calcutta cases it was recognized that where breaches of discipline are detected by the invigilators or other officers present in the examination-hall and candidates concerned are expelled from the hall or otherwise dealt with, the question of any enquiry or investigation upon notice to the candidates may not arise. In Ghanshyam Das v. Board of H. S. and I. E. U. P. Allahabad, (S) AIR 1956 All 539, also, two Judges of the Allahabad High Court were agreed on the point that the Examination Committee constituted under the U. P. Intermediate Examinations Act, 1921, and the Regulations framed thereunder was not required to act judicially or quasi-judicially while dealing with cases of misconduct of examinees discovered in the examination-hall.

9. Shri Sen referred us to the decision of the Privy Council in University of Ceylon v. Fernando; 1960-1 All ER 631. That case does not seem to us to be in point. In that case the Vice-Chancellor of the University of Ceylon set up a commission of enquiry consisting of himself and two other persons, to inquire into a report that Fernando who had appeared for the B. Sc. examination of the University had obtained prior knowledge of the contents' of an examination paper. The commission interrogated several persons including the Person making the report and Fernando was invited to appear and did appear before the commission OH two occasions.

The interrogation of the person making the report was in the absence of Fernando. The commission found the allegation against the candidate proved and thereupon the Board of Residence and Discipline of the University decided to suspend Fernando from all University Examinations for an indefinite period. Fernando's suit for a declaration that the decision of the Board and the finding of the commission of enquiry set up by the Vice-Chancellor were null and void was dismissed by the District Court of Colombo.

It was, however, decreed in appeal by the Supreme Court of Ceylon. The matter then went up before the Privy Council on an appeal by the University. The appeal was decided by the Privy Council on the footing that the Vice-Chancellor's functions were quasi-judicial. The appellant abandoned its contention that the Vice-Chancellor's functions were purely administrative and no argument was addressed to the Judicial Committee or the point.

On that basis the Privy Council held that having regard to the wide discretion given to the Vice-Chancellor he was entitled to adopt such procedure as he thought best for enquiry into the charge, subject to the basic requirements that the accused was given a fair opportunity to state his case and to correct or controvert any relevant statement brought forward to his prejudice. It Was found by the Privy Council that Fernando had been adequately informed of the case he had to meet and that Fernando had failed to avail himself of the opportunity which was available to him of cross-examining witnesses who deposed against him. It is thus clear that the Privy Council case is altogether different from the present one on facts and decided a point which does not arise for consideration here.

10. For all these reasons, in our view the decision of the opponents disqualifying the petitioner from passing the previous LL.B. examination of 1960 and debarring him from appearing at any supplementary examination of that year and from appearing at the examination to be held in 1961 is in conformity with Article 13 of Ordinance No. 19 and cannot be declared to be void. The result is that this petition is dismissed. In the circumstances of the case we make no order as to costs of this application. The outstanding amount of the security deposit shall be refunded to the petitioner.


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