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Suresh Kumar Bagaria Vs. University of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1000 of 1980
Judge
Reported inAIR1981Raj188
ActsUniversity of Rajasthan Ordinances - Order 152, 152(1) and 152(2); Constitution of India - Article 226
AppellantSuresh Kumar Bagaria
RespondentUniversity of Rajasthan and anr.
Appellant Advocate M.R. Calla and; P.V. Calla, Advs.
Respondent Advocate C.M. Mathur, Adv.
DispositionPetition allowed
Cases ReferredIn Indra Methi v. Board of Secondary Education
Excerpt:
- - 7). ultimately by letter dated 14th november, 1979, the university-respondent called upon the petitioner to appear before the standing committee considering the cases of unfair means, on 27th november, 1979. 6. petitioner's case is that before the standing committee, he asserted that he has not used any unfair means and he is a student of good academic record and the internal assessment report may alsobe perused. examination, 1979. after considering the case, the university has decided that his examination of 1979 be cancelled and he be further debarred from appearing at any university examination for the year 1980. if he has appeared in uncovered/ uncleared subject(s) paper(s) of a lower examination along with the higher examination, he should treat his lower as well as higher.....orderg.m. lodha, j.1. suresh chand bagariva petitioner, passed his secondary examination in the first division in the year 1977. in the higher secondary examination, he got second division obtaining 57.25% marks in the year 1978.2. according to appendix 'a1, petitioner always obtained first division marks in english from 6th to llth class and it ranges from 64% to 82%.3. the petitioner appeared in the first year t. d. c. (commerce) examinations, 1979. the examination of the english paper was held on 19-5-79, and the examinations were over by 22-5-1979. the result was declared on 18th august, 1979 but the petitioner's result was withheld.4. the petitioner's father sent a letter on 27th august 1979 enquiring about the reasons and requested for declaration of the result. the university of.....
Judgment:
ORDER

G.M. Lodha, J.

1. Suresh Chand Bagariva petitioner, passed his Secondary examination in the First Division in the year 1977. In the Higher Secondary examination, he got Second Division obtaining 57.25% marks in the year 1978.

2. According to Appendix 'A1, petitioner always obtained First Division marks in English from 6th to llth Class and it ranges from 64% to 82%.

3. The petitioner appeared in the First year T. D. C. (Commerce) examinations, 1979. The examination of the English paper was held on 19-5-79, and the examinations were over by 22-5-1979. The result was declared on 18th August, 1979 but the petitioner's result was withheld.

4. The petitioner's father sent a letter on 27th August 1979 enquiring about the reasons and requested for declaration of the result. The University of Rajasthan by a letter dated 8th September, 1979 conveyed that the petitioner has been caught using unfair means and therefore, the result has been withheld. Petitioner then sent letter dated 4-9-1979 which was replied on 25-10-1979. Another reminder was sent on 25th October, 1979 and in this, petitioner asserted that the allegation levelled against him was wholly baseless and the Centre Superintendent has also verified that the petitioner was never caught using unfair means and no case of unfair means was referred by the Centre Superintendent to the University-respondent.

5. Since the University-respondent did not send any further reply, petitioner again wrote on 12th November, 1979 a letter. (Ex. 7). Ultimately by letter dated 14th November, 1979, the University-respondent called upon the petitioner to appear before the Standing Committee considering the cases of unfair means, on 27th November, 1979.

6. Petitioner's case is that before the Standing Committee, he asserted that he has not used any unfair means and he is a student of good academic record and the internal assessment report may alsobe perused. After that, petitioner submitted a representation on llth December, 1979 to the Vice-Chancellor. On 14th December, 1979, petitioner was informed that the University is taking action promptly and the reply would follow.

7. On 1st January, 1980 petitioner sent another reminder and a telegram was also sent requesting that his result may be declared, so that he may seek admission in the Second year T. D. C. Ultimately, petitioner received a letter in the form of order dated 29th February, 1980 which reads as under:--

UNIVERSITY OF RAJASTHAN JAIPUR

To

Suresh Kumar Bagaria (5112)

Akhadiya Upbhogta Shakari Sangh

Ltd. Teh, Sabun, Churu (Raj.)

No. F. 4 (1) Exam./III/UM/79/7497-553 Dated 29 Feb., 1980.

She/he is informed that he/she was caught using Unfair means at IInd year Com. Examination, 1979.

After considering the case, the University has decided that his examination of 1979 be cancelled and he be further debarred from appearing at any University Examination for the year 1980.

If he has appeared in uncovered/ uncleared subject(s) Paper(s) of a lower examination along with the higher examination, he should treat his lower as well as higher examination of 1979 as cancelled.

Sd/-

Asstt Registrar (Exam. III)'

8. The petitioner then sent representation and telegram to Chancellor and the Vice-Chancellor. Ultimately, filed this writ petition challenging the above order. Petitioner asserts that he was not guilty of adopting unfair means nor such allegation was made while he was appearing in examination of English and this later punishment is without any opportunity to him to show cause and without there being any allegation to that effect. He has submitted a photostat copy of the certificate dated 24-9-79 sent by the Principal, Lohiya College, Churu to the University that there had been no case of infair means against the petitioner.

9. Petitioner submits that since the University did not decide his case and took long time, he attended classes of College, at Churu in Lohiya College, informally for taking coaching and study of IInd Commerce T. D. C. and now examinations are going to be held on 7-7-80, respondents should be directed to permit him to appear in the Second Year T. D. C, (Commerce), examinations.

10. The University-respondent has filed a reply and contested the writ petition. The principal ground of contest is that the examiner who examined the answer book of the petitioner for giving marks in English found that his answer book tallied with the copy of the other student having Roll No. 5113 (SureshKumar Choliya) and the similarity was not casual but the entire answer book was copied word to word and answer of all the questions tally word to word. In support of this, University-respondent has also filed photostat copies of the answer books of the petitioner and other student having Roll No. 5133. Mr. Mathur, learned counsel for the University, has pointed out that before the Standing Committee constituted for enquiring into unfair means adopted by the students, petitioner was clearly questioned about the copying of the answers of questions in the subject of English, and detailed examination was conducted, in which he was allowed full opportunity to state his case and show cause. The proceedings of the Standing Committee, who enquired into the allegations of unfair means against the petitioner, have been produced by the University and marked as Annexure R. V., which reads as under:

(This matter being in vernacular we regret that we have to omit it here as we have no facilities for printing it--Ed.).

The chart of sitting arrangement was received from the Centre and considered by the Committee. The Committee is conviced that the two candidates (this candidate and another candidate with R. No. 5113) have copied from each other. Sd/- (Illegible) 27-11-79.

Sd/-

(Suresh Kumar Bagariya) 27-11-29.

11. On the basis of the above examination of the petitioner, which as per the version of the University is a detailed one and comprehensive one also, it is claimed that the compliance was made of both, the Ordinances of the University and the principles of natural justice.

12. Confronted with the above, Mr. Calla, appearing for the petitioner, has argued that the mere fact that the answer in the two answer books cannot proveunfair means and moreover, tallying with each other cannot provide proof of allegation that the petitioner used unfair means of copying. It was pointed out that the petitioner was sitting ahead in the front row of the other student whose answer book is said to contain similar answers and since it is alleged and also shown by the answer books, photostat copies produced by the University that the two answer books contained exactly same answers, word to word, it was impossible for a student sitting on the front raw to have copied from the student's answer book sitting behind him. It was also pointed out that Annexure 8 goes to show that the petitioner is a brilliant student so far as English subject is concerned, he has all through secured very high marks ranging from 82% in 8th Class. 79% in ninth class, 70% in tenth class and 64% in 11th class. In comparison to it, other student, whose Roll No. 5113 is IIIrd Divisioner and he was sitting behind the petitioner on the day the examination of the English subject was conducted. On the above premises, it was argued that not only, there is complete lack of evidence and it's a case of no evidence fox proving the allegation of copying, against the petitioner but the circumstances mentioned above, rule out any such possibility of copying by the petitioner. Mr. Mathur, in reply to the above contention of Mr. Calla, submitted that whether a student, himself, copies from the answer book of the other student or allows some other student to copy from his answer book, resultant position is the same and he is guilty of using unfair means. My attention was invited to Sub-clause (1) (ii) of Order 152 which reads as under: --

Order 152. UNFAIR MEANS IN CONNECTION WITH THE UNIVERSITY EXAMINATIONS.

(1) Unfair means shall include the following:

(i) not relevant here.

(ii) giving or receiving assistance in answering the question-papers from any other candidate, person in the examination hall or outside during the examination hours;'

13. It was contended that whether a student gives assistance or receives assistance, is the same and he is liable to be punished for using unfair means in the same manner as the Ordinance makes no difference between the two.

14. Mr. Mathur, learned Advocate for the University, further, submitted that this Court should not, under Article 226 of the Constitution, and cannot act as an Appellate Court for appreciating evidence produced before the Standing Committee and in the matter of the University, which is an autonomous body under the law, no interference should be done by this Court merely on the ground that a question posed and answered was not in proper form or that two views can be taken of the evidence produced before the Standing Committee Reliance was also placed on the judgment of the Supreme Court in Prem Prakash Kaluniya v. Punjab University, (1973) 3 SCC 424: (AIR 1972 SC 1408); Board of High School Edu. U. P. v. Bagleswar Pd. (1963) 3 SCR 767 : (AIR 1966 SC 875); Ramesh Kumar v. Punjab University AIR 1973 Punj 157 and Suresh Koshy Georage v. University of Kerala, AIR 1969 SC 198.

15. Mr. Calls, learned Advocate for the petitioner invited my attention to the judgment of this Court in Indra Methi v. Board of Secondary Education Examination. Rajasthan, Ajmer, 1974 Raj LW 230 : (AIR 1975 Raj 116) and Mirza Shokat Bog v. University of Rajasthan AIR 1979 Rai 37 and recent unreported judement of Sanjay Lobo v. University of Rajasthan (Civil Writ Petition No, 874/80, decided on 28th May, 1980): (since reported in AIR 1981 Raj 69). The consistent view taken by this Court in the matter of the students, whenever challanges have been made to their cancellation of the examinations or rustication, on the ground of using unfair means is that they have got a right in accordance with the University Ordinances, regulations or rules, of an opportunity to defend, themselves, against the allegation of unfair means alleged to have been used by them. Universities of Rajasthan have framed Ordinances and laid down the procedure for dealing with the cases of the un-lair means used by the students and they differ from University to University.

16. The common theme and the basic principle of each of the judgment of this Court is that the minimum requirement in such matters is that student must be first informed as to what is the precise allegation against him constituting unfair means and then material on which it is based, should be made known to him and should be accessible. Thereafter, he roust be allowed an opportunity to explain and defend himself against that material and while doing so, he can produce any oral or documentary evidence, if he desires to do so in support of his evidence.

17. In Indra Methi v. Board of Secondary Education's case (1974 Raj LW 230): (AIR 1975 Raj 116) (supra), this Court has occasion to deal with a case of mass copying by 29 students, whose examinations were cancelled and who were debarred from appearing in the examination of the next year also. The grievance was made, that no reasonable opportunity was afforded to the petitioners and therefore the principles of natural justice were violated. This Court discussed number of judgments, relied upon by the rival parties and ultimately decided the exact scope of opportunity in para 9 (of Raj LW): (Para 8 of AIR) in the following terms:'

'9. From the foregoing discussion it would appear that firstly, the person affected should be apprised of the charges of unfair means against him as in the absence of a clear notice of the charges against him the person affected is placed at a great handicap to defend himself and such a procedure falls below the accepted standard of procedure of fair hearing; secondly, it cannot base its decision on materials unless the person against whom they are sought to be utilised has been given an opportunity to the delinquent to explain the circumstances appearing against him.'

18. The Court further held that there was no statutory exclusion of the principle of natural justice expressly or by implication according to the statute which was Chapter X of the Regulation, in that case.

19. On facts, since it was found that the show cause notice did not specify the particulars of unfair means alleged to have been used and as the enquiry officer merely inquired as to whether the petitioner copied from the answer book of another student or whether she allowed to copy from her answer book but did not ask whether they copied from a common source, it was held that there was no sufficient compliance of the requirements of providing reasonable opportunity and consequently the principles of natural justice were violated.

20. I have mentioned the facts of this case, in details, because it happens to be a case of copying and it has got great relevancy in the facts of the present case.

21. So far as the present case is concerned, the procedure for dealing with the cases of the unfair means used by the students is governed by the Ordinance No. 152. Sub-Clause (2) of Ordinance 152, gives the procedure to be adopted at the centre, where the examinations are being held if a candidate is suspected using unfair means as denned in Clause (1). This Clause (1) is not relevant for our purposes, admittedly in this case nothing was done.

22. A study of Clause (2) and its sub-clauses, shows that the Ordinance making authority contemplated the unfair means detection at the centre itself and therefore, procedure provided is based on the report of the Centre Superintendent or the Centre In charge.

23. In the instant case, since the admitted position is that no detection was made at the time of he examination conducted by the Centre In charge or the invigilator, therefore, the procedure prescribed in this Sub-clause (2), in terms, cannot apply.

24. Mr. Mathur, learned Advocate forthe University, in view of the above, submitted that the principles of natural justice alone would govern the instant case as the Ordinance 152, in terms, is not applicable because of the peculiar facts of this case.

25. It is, therefore, to be seen whether in view of the submission of Mr. Mathur that principles of natural justice would apply and the Ordinances in terms, cannot apply, the requirement of principles of natural justice have been met in the instant case or not?

26. Without repeating the details of correspondence which ensued between the parties, it can safely be mentioned that so far as correspondence is concerned, no information was given by the letters and at no point of time, petitioner was informed that there is an allegation against him that in the examination of English subject, he has copied the answers from the answer book of any other student nor in any of the letters exchanged, petitioner was informed that he has allowed any other student, to copy answers given by him in the examination of English subject. Since there is no dispute on this point, it would not be necessary to extract from all the correspondence to substantiate the above.

27. The crucial question which is to be considered, is that in the absence of any such prior intimation of allegation, the examination of the student, which was conducted by the Standing Committee and which is Annexures Rule 5 & Rule 6 was such that it can safely be held that the respondents have complied with the requirements of the basic principles of natural justice in such a case. The relevant question which was put to the student is as under:

(This matter being in vernacular we regret that we have to omit it as we have no facilities for printing it--Ed.) This allegation was denied by the petitioner and he asserted that he was sitting in the front row and Suresh Kumar Chautiya was sitting behind him. The petitioner further asserted that he gave answers of his own and never copied from the answer book of Suresh Kumar Chautiya. Another question which may have some relevancy, was as under:

(This matter being in vernacular we regret that we have to omit it as we have no facilities for printing it--Ed.) The answer to this question was that he had no such knowledge. All other questions in Annexure Rule 5 and Rule 6 are in the form of cross-examinations, in order to elucidate, why there was exact similarity between two answer books of the petitioner and Suresh Kumar Chautiya. Consistently, the petitioner had shown ignorance and denied the allegation. The petitioner has asserted in all answers that he was busy with answering to questions and he could hardly complete all the answers.

28. It is significant to note that even after providing possible latitude to the University, one cannot escape noticing that leaving aside the absence of conveying of any allegations earlier, even during this lengthy cross-examination, it was not put to the petitioner that there is a charge against him that he allowed answers given by him in his answer book to be copied by Suresh Kumar Chautiya. This assumes importance because the minimum requirement of principles of natural justice would warrant that at least student must be told about the charge or the allegation of which he is liable to be punished. The question of making him known evidence or material to be used against him, comes later on.

29. From the above, it is obvious that all that was alleged, as per the questionreproduced above, was that there is a charge against him that he has copied from the answer book of Suresh Kumar Chautiya.

30. This charge having been denied it is to be seen whether there is anything in the examination (Annexures Rule 5 and Rule 6) or otherwise, on which it can be said that the charge is proved though this Court would not enter into the appreciation of the material or the evidence on record.

31. As per the facts, which are not in dispute, sole material, which is being relied upon by the Standing Committee and so here also by the University now, is that the answers in the two answer books are identical and that is not possible unless the copying is done. This, of course, is true and on a perusal of the two answer books, I am also convinced that the submission of Mr. Mathur, in this respect that the identical answers of all questions and that too word by word in the two answer books were not possible, unless there has been copying. However, the important snag in the submission of Mr. Mathur is that it is not copying as such which is unfair practice or means in itself. The ordinance expressly mentions that it is giving or receiving assistance in answering the question-papers from any other candidate, which is an unfair means under the provisions of Ordinance 152. This postulates voluntary deliberate act of a student either to give assistance or to receive assistance. By mere fact that the two answer books are found having identical answers, it cannot be said that the petitioner received assistance from Suresh Kumar Chautiya. Since: the charge in the instant case, is that the; petitioner received assistance in and from the answer book of Suresh Kumar Chautiya, mere similarity in the answers, though being enough to raise a presumption of copying either by each other or, from the third source, cannot be enough for raising a presumption that it was the; petitioner who received assistance from Suresh Kumar Chautiya by copying his; answers.

32. It would thus be seen that the present case falls in the category of no evidence, so far as the charge of receiving assistance in the matter of copying from Suresh Kumar Chautiya by the petitioner, is concerned. As it is only when one of the act either of receiving or giving assistance is proved that Ordinance152 can be invoked, respondents cannot hold the petitioner guilty of using unfair means in connection with the University examinations.

33. So far as giving of assistance to Suresh Kumar Chautiya is concerned, there is no charge and therefore, it is not necessary for me to examine the alternative arguments of Mr. Mathur, in case of exact similarity of answers of the two answer hooks of the petitioner and Suresh Kumar Chautiya. either the petitioner has received/taken assistance by copying from the answer book of Suresh Kumar Chautiya or giving assistance by permitting Suresh Kumar Chautiya to copy from his answer books. If there would have been the charge on this point then I would certainly have examined the contention' of Mr. Calla that there can be the third source of copying also, and further submission that there can be a case where Suresh Kumar Chautiya might have left his answer book blank and after the examination was over the other agency might have with intention of obliging Suresh Kumar Chautiya got answers recorded in the blank answer book with the help of answer hook of the petitioner and for which the petitioner could not have any knowledge. These alternative submissions of Mr. Calls may or may not cut any ice in a given case but cannot be said to be frivolous and vexatious. However, the contingency of examining them would have arisen, only if there would have been any charge against the petitioner that he has allowed Suresh Kumar Chautiya to copy from his answer book. The question put to the petitioner whether he is of the opinion that it was Suresh Kumar Chautiya who was copying his answer book fails to fulfil the requirement of the precise valid charge on this point and cannot be used to make up this serious important lacuna left by the respondents.

34. It is all the more so because in spite of the fact that the petitioner has requested again and again the respondents to make him known reasons for withholding result and half a dozen representations have been sent either by the petitioner or by his father either in the form of letter or telegram to the respondents, at no point of time, any communication was sent by the respondent-University expressly mentioning that the result is being withheld on account of the charge that he has either copied from the answer book of Suresh Kumar Chautiyaor that he has allowed Suresh Kumar Chautiya to get answers copied from his answer book. Even any indirect intimation was not given. Not only that, but even in the final order which has been passed, all that has been said, is that he is guilty of using unfair means, without precisely pointing out what was the unfair means. for which he has been held to be guilty. Even the Standing Committee, which conducted the proceedings on 27-11-1979, did not specify whether it was petitioner who copied from the answer book of Suresh Kumar Chautiya and all that was said, was that 'the Committee is convinced that the two candidates (this candidate and another candidate having R. No. 5113) have copied from each other.' This finding of the Committee is equally vague and fails to specify whether the petitioner was responsible for giving assistance or taking assistance as contemplated by the Order 152.

35. On a careful and thoughtful consideration of the entire record produced by the University, it is obvious that the University authorities have not given a clear finding at any stage of the proceedings commencing from the examination and ending with the order of the punishment as to whether the petitioner was responsible for giving assistance or he was responsible for receiving and taking assistance as contemplated by Order 152. In my opinion, a clear and categorical finding on this point is a condition precedent before punishment provided in the Ordinance is inflicted on the student. It should not be forgotten that in the case of Indra Methi (1974 Raj LW 230: AIR 1975 Raj 116) (supra) this Court discussing this very crucial point observed as under:

'The show cause notice also did not specify the particulars of unfair means alleged to have been resorted to by the petitioners in the subject of arithmetic. The enquiry officer merely inquired as to whether the petitioner copied from the another candidate or whether she allowed the another candidate to copy from her answer books but did not ask whether they copied from a common source. All that can be gathered from the statement of the petitioners before the enquiry officer is that information was elicited from her as to the fact whether her answer tallied with another candidate's answer and whether she allowed copy or had copied from the answer book of the another candidate. This in my opinion is not at all sufficient specification of the charge and it is difficult to hold that the petitioner could make out from the queries of the inquiry officer the real case which she had to meet.' (From para 10 of Raj LW) : (From para 9 of AIR).

36. II would thus be seen that in the instant case, the minimum procedure adopted in Indra Methi's case (supra) which was held to be against the principles of natural justice, was not even adopted and therefore, the impugned order is vitiated being in violation of principles of natural justice. It is further vitiated because no case whatsoever of any of the unfair means as contemplated by Clause (1) (ii) of Ordinance 152 has been made out against the petitioner.

37. It is not necessary to discuss, in details, the principles enunciated in the various judgments or decisions relied upon by Mr. Mathur because as indicated in the beginning, all that they say, is that High Court should not take up its role of an Appellate Court in making up judicial review of the allegations about the unfair means adopted by a student and the punishment warranted in pursuance thereof. Even if there would have been slightest material on record to justify the cancellation of the examination of the petitioner, I would never interfere in this matter, but since there is complete absence of material and since no opportunity whatsoever as contemplated and as required by principles of natural justice, has been given to the petitioner as per the above discussion, there is no escape but to quash the impugned orders (Ex. 13, Ex. 14 and Ex. 19).

38. The next question which arises for consideration is that what relief should be given to the petitioner. The narration of the events mentioned in the beginning of this judgment and the dates would amply show that whereas the examination were held on 22-5-1979 and the result was declared on 18th August, 1979, the impugned order (Ex. 13) dated 29-2-1980 was passed. At the time of admission of this writ petition, a stay order was passed in the following term on 7-7-1980: --

'Heard learned counsel for the parties. In view of the facts and circumstances of the case, the main writ petition should be listed for hearing on 15th July, 1980 since it relates to the examination of a student.

Mr. C. M. Mathur, learned counsel for the University of Rajasthan undertakes that in case, writ application is allowed and any order is passed permitting holding of the examination of the petitioner, then even though the regular examinations may be over, University would allow the petitioner to appear in the supplementary examinations in all the subjects as per directions of the Court, as if examinations are regular one.

In view of this undertaking of Mr. C. M. Mathur, no further orders are required on the stay application. Let this case be put up for hearing on 15th July, 1980 immediately after part-heard cast's.'

39. In the stay application, prayer of the petitioner was that the result of 1st year T. D. C. (Commerce) 1979 examination, should be provisionally declared and the petitioner would be allowed to appear in the 2nd year T. D. C. examination 1980 provisionally which are going to commence on 7th July, 1980.

40. Mr. Mathur filed reply to the stay petition. In the reply, it was pointed out that by virtue of Ordinance 202 of the University, unless a candidate passes First Year TDC Examination of the University, he is not entitled to secure admission in Second Year TDC or to appear in the Examination of Second Year TDC.

41. It was further pleaded in the reply that in the instant case, till the order dated 29-2-1980 is not quashed, the question to appear in the Second Year TDC (Commerce) Examination does not arise.

42. It was also contended in the reply that there is no provision under the University Act to provisionally allow a candiate to appear in the Examination of Second Year TDC Examination without qualifying the examination of First Year TDC as required under Ordinance 202.

43. During the arguments of the writ petition, when the question of granting relief was discussed, Mr. Mathur vehemently submitted that unless a candidate regularly takes admission in the second year TDC and attends the classes, he cannot be allowed to appear in the examination. It was argued that even if the impugned order Ex. 7 is quashed then also the maximum relief, which can be given, is that his result of the Second Year T. D. C. Examination would be declared.

44. Mr. Calla, learned counsel for the petitioner, contrary to the submissions of Mr. Mathur argued that delay in disposal of the unfair means proceeding was on account of the University's proceedingsand the petitioner cannot be made to suffer for that. He also invited my attention to the judgment of this Court in Mirza Shokat Beg's case (AIR 1979 Raj 37) (supra), where even though the answer books were destroyed and according to the schemes and Ordinances of the University, third reassessment/valuation was not. possible, yet the Court observed as under:--

'The examinees were deprived of the right of getting their answer books examined by the third examiner with no fault of theirs. They were, therefore, entitled to get their result-sheet computed on the basis of the advantageous marks given by any of the two examiners. This was in consonance with the principle of equity, justice and fair play. The University could not put the examinee to disadvantageous position on account of its own fault.'

(H. N.)

45. In the instant case, this controversy need not detain me any further because at the time of consideration of the stay application, question of examination which was going to be a conducted from 7th July, 1980 and in which the petitioner wanted to appear provisionally in the second year TDC Examination, was alive. Sc far as question of quashing the order of cancellation was concerned, there was no occasion for obtaining an undertaking for appearing in the examination of first year TDC (Commerce) now because those examinations were conducted in 1979 and the marks are available and on quashing of the impugned order dated 29-2-1980 (Ex. 13), all that was required to be done, is to announce the result as per the marks obtained in 1979.

46. During the course of dictation of the judgment. Mr. Mathur, learned counsel for the University pointed out that the undertaking was given for permitting the petitioner in supplementary examinations on the assumption that if the Court finds that the punishment is excessive then maintaining the cancellation of the examination for 1979, punishment may be reduced to that only and he may be allowed to appear again in 1980 at least. Since Mr. Mathur submits that he gave undertaking in this background and with this intention, this Court would not interpret undertaking in any other manner, although initially I had an impression that the undertaking was given for permitting the petitioner to appear in the Second Year T. D. C. examination because prayer of the petitioner was only for that and the reply also. It was contended by the University that unless the order of cancellation of examination of First Year TDC (Commerce) is quashed, there cannot be any question of permitting the petitioner for appearing in the Second Year TDC examination.

47. Be that as it may, it would be in all fairness, proper to accept the interpretation of undertaking of Mr. Mathur himself, who is a senior counsel of this Court, as to in what particular impression he gave undertaking. I would, therefore, not like to base my judgment on this undertaking.

48. However, question which conies for consideration, is that as held in the judgment of Mirza Shokat Beg's case (AIR 1979 Raj 37) (supra), relevant portion of which has been extracted above, once it is held that the cancellation of the examination is liable to be quashed, student should not be deprived of his normal right to appear in the examination of Second Year TDC (Commerce) provided as per the result of the first year TDC examination he becomes eligible to be promoted to second year TDC. Though in the slight different context this Court made above observations and held that the University could not put the examinee to disadvantageous position on account of its own fault. If this relief is not given now, result of it would be that although order has been quashed but student would be punished and one precious year of his life would be lost. Would it not be the punishment to the student without there being any finding of unfair means either by the University as the order of the University has been quashed by this Court? Would it not be reaffirming the punishment indirectly after quashing it directly. Would it not be a situation where the Court would become helpless spectator and would perpetuate injustice. Ordinances of the University are meant for the regulation of the studies and normally they would govern the internal matters of the University. However, where a case comes before the Court, in which this Court under Article 226 of the Constitution of India feels that ends of justice would be met by giving a particular relief, hyper-technical provisions in the shape of Rules or Regulations or Ordinances cannot withhold the relief which this Court wants to give. Article 226 of the Constitution provides unfettered powers to this Court and all writs, directions can be issued to achieve that ideal object of doing justice in case, this Court, in a given situation, is convinced that the dictates of justice warrant it. I am, therefore, of the opinion that the plea that the student could not attend the classes because of the impugned order, which has been quashed cannot be used as a weapon by the University for debarring him from appearing in the examination, once this Court comes to the conclusion that the impugned order is bad in law.

49. It is not to be forgotten that in matters of passing orders under the disciplinary proceedings of unfair means of Ordinance 152, the University should act expeditiously and the fact that in this case, about eight months were taken, though for which there may be justification so far as internal working of the University is concerned, that would certainly waive this Court while deciding .the question of relief. The delay caused in this respect cannot be allowed to come in the way of the career of the student, once this Court comes to the conclusion that the impugned order cannot be sustained.

50. For all the above reasons this writ petition succeeds and is hereby accepted. The impugned orders dated 29-2-1980 (Ex. 13), 12-3-1980 (Ex. 14) and dated 13-6-1980 (Ex. 19) are quashed. The respondents are directed first to declare the result of the petitioner for the first year T. D. C. (Commerce) Examination, 1979, and then if he passes that examination, to further allow him to appear in the Second Year Examination at the time of supplementary examinations are held for the students who regularly appeared in the examinations in July, 1980. Mr. Mathur, learned Advocate for the University prays that the ten days' time may be allowed to declare the result of the petitioner for the First Year TDC (Commerce) Examinations held in 1979, in view of the coming holidays. The prayer is reasonable and time up to 27th October, 1980 is allowed.

51. The net result is that this writ petition is allowed as indicated above without any order as to costs.


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