Dwarka Prasad Gupta J.
1. As this writ petition involves a very short question, main writ petition was taken up for hearing today with the consent of learned counsel for the parties.
2. The petitioner appeared at the Second Year T.D.C. Science Examination held in the first week of June, 1983. On June 7, 1983 when the examination of Physics first paper was being conducted, a Flying Squad of the University of Rajasthan entered the Examination Hall and asked the candidate to hand over papers and other incriminating articles in their possession. The petitioner handed over to the members of the Flying Squad a piece of paper, which according to him, was inadvertently kept in the pocket of his trousers. The members of the Flying Squad took the paper and made a report that a hand written paper was recovered from the right hand pocket of the trousers of the petitioner. This statement was corroborated by the Centre Superintendent, who made an additional observation that the behaviour of the candidate remained satisfactory throughout the query. The Standing Committee for unfair means cases of the University after considering the case of the petitioner decided that the examination of the petitioner in Physics first paper be cancelled and he may be treated to have obtained zero mark in that paper. However, as the petitioner obtained 52 marks out of 67 in the remaining two papers of Physics and 45 marks out of 50 in the practical, the cancellation of the Physics first-paper did not materially affect the result of the petitioner in as much as he passed in the First division obtaining 366 marks out of 450, which are more than 80%, in the Second Year T.D.C. Science Examination, 1983 of the University of Rajasthan. On passing the Third Year Science Examination, 1984 also in the first division, the petitioner obtained third position in the University in the B.Sc Examination having obtained 735 marks out of 900, even after cancellation of the physics first paper of Second Year T.D.C. Science Examination, 1983.
3. The Petitioner's grievance is that as the piece of paper recovered from the petitioner during the examination of the Physics first paper of the Second Year T.D.C Science Examination, 1983, was neither useable, nor was used by the petitioner and in the face of the report of the Head Examiner, the examination of the petitioner in respect of Physics first paper should net have been cancelled. It was submitted by the learned counsel for the petitioner that not only the fact is established that the petitioner did not use the piece of paper recovered from him in the examination, but also it is established that the piece of paper could not have been used, as it was not relevant to the question which appeared in the Physics first paper. It was also argued that the punishment has been awarded to the petitioner merely on a very technical interpretation of the provisions of Clauses (2) (a) (v)(a) of Ordinance 152 of the University of Rajasthan. It was pointed out that the petitioner had an exceptionally brilliant career, in as much as he throughout stood first in the examination at which he appeared and that the stigma which may be cast on account of cancellation of the Physics first paper examination, may have the effect of marring the brilliant career of the petitioner in the rest of his life and may also affect his future career.
4. The documents which have been placed on record undoubtedly go to show that the petitioner had on exceptionally brillant career and has obtained first class marks in each and every class from 1st to 12th class. It is also apparent from the result of the B.Sc. examination, where inspite of cancellation of the result of Physics first paper of the Second Year T.D.C. Examination, the petitioner obtained 735 out of 900 marks and also obtained third position in the University in B.Sc. Examination, 1984.
5. Learned Advocate General, appearing for the University, submitted that the University has taken due regard of the brilliant academic career of the petitioner and has awarded the minimum punishment of cancellation of the result only of the paper at which the unfair meant could be used and the result of the entire examination was not cancelled. The learned Advocate General submitted that on a true construction of the provisions of Ordinance 152(2)(a)(v)(a) of the University of Rajasthan, as incriminating material was recovered from the petitioner during the examination time, punishment had to be awarded in accordance with Clause (3) of Ordinance 152.
6. The relevant provisions of Clause (2)(a)(v)(a) of Ordinance 152 are as under:
2(a) Unfair means shall include the following : (v) Having in possession during the examination time:
(a) Any paper, book, note or any other unauthorised material which have relevance to the examination concerned.
There is no doubt that the petitioner was found in possession during the examination time of a paper, which may be said to be unauthorised material, but the crucial words occuring in Clause (2)(a)(v)(a) of Ordinance 152 are 'which have relevance to the examination concerned'. Now, the Head Examiner's report, which has been placed before me by the learned Advocate General, shows that not only the candidate did not make any use of the material found in his possession, but also that the candidate could not make any use of the said material, although it has been stated by the Head Examiner that the material recovered related to the syllabus. Obviously in my view the words 'which have relevance to the examination concerned' must be interpreted as 'relevant to the examination paper concerned'. When the question of the career of a brilliant student like the petitioner is at stake, it would not be proper to give a very wide connotation to the word 'examination' occurring in the relevant clause and meaning thereby the syllabus of the examination. The primary object of the University is to enforce discipline amongst the students and to ensure that unfair means are not used by any student at the examination. I am unable to accept the view that the provisions of the Ordinance 152 could be utilised for imposing penalty for the alleged technical breach, when the University authorities themselves were convinced that neither the petitioner used unfair means, nor he intended to use any unfair means as from the Head Examiner's report it is apparent that not only the candidate did not make any use of the material recovered from him, but he could not make any use of the said material in the examination of Physics first paper.
7. It should undoubtedly be emphasised that the use of unfair means by students at the examinations needs to be curbed with a strong hand and those found guilty of using or trying to use unfair means should be severely dealt with, but what is to be taken care of in doing so is that merely because of a highly technical interpretation of the relevant provisions, punishment should not be imposed upon those candidates who do not deserve to be punished or the brilliant academic career of some bright students may not be marred in our zeal to eradicate the evil of using unfair means. If it appears to the University authorities that either the candidate has used unfair means or even if he was likley to utilise the material available with him in case he would not have been detected at the proper time by the Invigilator or the Flying Squad or other authority, then there can be no dispute that such a candidate, who could be presumed to have an evil design or an evil intention of using unfair means should not be spared but should be squarely punished. But as I have already observed above, in the present case, the Head Examiner after taking into consideration the question paper of Physics first paper recovered from the possession of the petitioner, was clearly of the opinion that not only the candidate did not make use of the material, but he could not have made use of the same. This was because the material found in possession of the petitioner had no relevance to the questions appearing in the Physics first paper of the Second Year T.D.C. Science Examination of 1983, although the said material related generally to the syllabus.
8. It may also be observed that the answer book in which the petitioner was answering the questions of the Physics first paper was taken from him after the Flying Squad recovered the alleged incriminating material from his possession and a fresh answer book was supplied to him in which he answered the remaining questions. According to the Head Examiner, the petitioner obtained 24 out of 33 marks in the Physics first paper, inculsive of 11-1/2 marks obtained in questions answered in the first answer book and 12 marks obtained in the questions answered in the second answer book. In Kumari Sandhya Sharma v. Board of High School and Intermediate Education, U.P., Allahabad AIR 1983 All 44 it was observed that the result of a candidate should not be interfered with merely on suspicion unless there is intrinsic evidence on record for proving the charge alleged against the petitioner.
9. From the perusal of the report of the Head Examiner, it is clear that the petitioner neither used unfair means, nor he had any intention of using unfair means, but he appears to have been punished merely because of a very technical interpretation of the provisions of Ordinance 152(2)(a(v)(a), on the ground that the material recovered from the petitioner was relevant to the syllabus, although it was not relevant to any of the questions appearing in the examination paper of Physics first paper of the Second Year T.D.C. Science Examination, 1983. It cannot be lost sight of that the petitioner obtained more than 80% marks at the B.Sc. Examination and obtained third position in the University, even after ignoring the marks obtained by him in the Physics First Paper in the Second Year T.D.C. Science Examination. In my view there is no reason to take a very hypertechnical interpretation of the relevant provisions, which would unreasonably affect the career of an exceptionally brilliant student, who has high academic attainments throughout his career.
10. It may be observed that the learned counsel for the petitioner did not argue the question about the vires of Ordinance 152 of the University of Rajasthan before me.
11. In this view of the matter, the writ petition is allowed. The order Annexure-5 passed by the University of Rajasthan is set aside. The University of Rajasthan is directed to assign the marks of Physics first paper to the petitioner in the Second Year T.D.C. Science Examination, 1983 and after adding the marks of the Physics first paper obtained by the petitioner, recalculate the total marks obtained by him at the B.Sc. Examination, 1984 and restore the position which the petitioner would have obtained in the merit list, if the examination of Physics first paper of the Second Year T.D.C. Science Examination of 1983 would not have been cancelled. A revised marks-sheet of Second Year T.D.C. Science Examination, 1983 should be issued to the petitioner and the University should issue revised result of the petitioner of the B.Sc. Examination 1984, keeping in view the observations made above.
12. The parties are left to bear their own costs.