CW/4558/2007 of LOKESH KHANDELWAL Vs M.D.S. UNIVERSITY, AJMER and ANR. on 20 December 2007

ORDER

Lokesh Khandelwal vs. Maharishi Dayanand University, Ajmer & Ors.(S.B.CIVIL WRIT PETITION NO.4558/07 )

Dated:- 20.12.2007.

HON'BLE MR.JUSTICE SANGEET LODHA

Mr. Narpat Singh Charan , for the petitioner.Mr. S.G.Ojha ) for the respondents.Mr. Sandeep Shah)

-BY THE COURT:

This writ petition is directed against the order dated24.8.06, passed by the respondent University , whereby thepetitioner's examination of B.C.A-part I, 2006, has beencancelled and he has been further debarred from appearing inany examination for the year 2007. The petitioner has alsosought declaration that he may be declared eligible to appear inthe examination of B.C.A.-Part I , 2007 and further directionsagainst the respondents to declare his result of B.C.A-Part I,2007 with all consequential benefits and to allow him to takeadmission in the next class or in any other course if he succeedsin B.C.A.-Part I examination, 2007.

The petitioner took admission in B.C.A.-Part I in S.P.U.(P.G.), College, Falna in the academic session 2005-2006. On12.4.07, while appearing in the 6[th] paper of B.C.A.-Part I

examination, a case of using unfairmeans was registered againstthe petitioner. Consequently, he was not allowed to appear inthe examinations for the session 2005-2006. It is stated thatwhile debarring the petitioner from appearance in theexamination for the academic session 2005-2006, a case wasalso registered against him under the Rajasthan PublicExamination(Prevention of Unfair Means) Act, 1992. It is statedthat no final decision was communicated to the petitioner by therespondent University. It is further stated that on enquiry beingmade in the office of S.P.U.(P.G.) College, Falna, the petitionerwas apprised that he can take admission afresh in the B.C.A.-Part I in the academic session, 2006-2007. Accordingly, thepetitioner deposited the requisite admission and examination fee.It is submitted that the petitioner undertook the study of B.C.A.-Part I during the academic session 2006-2007 and was allowedto appear in the Annual Examination B.C.A.-Part I, 2007, whichwere held in the month of April, 2007. The result of B.C.A.-PartI Examination, 2007 was declared by the respondent Universityon 7.7.07, however, the petitioner's result was withheld for wantof enrollment number. A certificate regarding enrollment numberwas issued by the Principal, S.P.U.(P.G.) College, Falna.Thereafter, the petitioner approached the respondent Universityand submitted enrollment certificate and requested fordeclaration of his result of B.C.A.-Part I Examination, 2007.

However, the respondent University refused to declare the resultand issue the mark sheet on the ground that the petitionerstands debarred from taking B.C.A.-Part I Examination , 2007,on account of the charge of using unfair means having beenfound proved against him, during the academic session 2005-2006. It is stated that only at this stage, the petitioner came toknow that on account of the user of unfair means, not only , hisB.C.A.-Part I Examination, 2006 has been cancelled but, he hasbeen further debarred from appearing in the academic session2006-2007. It is contended on behalf of the petitioner thathaving accorded admission to the petitioner in the B.C.A.-Part Iduring the academic session 2006-2007 and having permittedhim to appear in the examination, 2007 after examining hiseligibility and candidature , the respondents cannot be permittedto withheld the petitioner's result and spoil his one moreprecious year without there being any fault on his part. In thesecircumstances, this writ petition has been preferred by thepetitioner seeking relief referred supra.

A reply to the writ petition was filed on behalf of therespondents wherein inter alia, it is stated that the petitionerwas found guilty for using unfair means during the B.C.A.-Part IExamination, 2006, by the Unfairmeans Committee of therespondent University ,and consequently, his examination for theyear 2006 has been cancelled and he has been further debarred from appearing in the Examination, 2007. It is stated that thecopy of the decision was sent to the petitioner as well as thePrincipal, S.P.U.(P.G.) College, Falna,therefore, it is wrong tocontend on behalf of the petitioner that he was notcommunicated the decision of the Unfairmeans Committee. Acopy of the said decision dated 24.8.06 has been placed onrecord as Annexure R/1. It is stated that while filling the form forB.C.A.-Part I Examination, 2007 , the petitioner has shownhimself to be an ex-student and concealed the relevant factsrequired to be mentioned in the column pertaining to passing ofthe examination. It is stated that in the said column , thepetitioner has mentioned that he has passed the SeniorSecondary Examination in the year 2005 but, did not disclosethat he appeared in B.C.A.-Part I Examination, 2006 . It is statedthat since there was no mention of the decision of theUnfairmeans Committee of the respondent University in theexamination form, therefore, inadvertently, admission card wasissued to the petitioner. It is submitted that since the petitionerdoes not fulfil the eligibility , therefore, his result has rightlywithheld/cancelled.

After filing of the reply as aforesaid, the petitionerpreferred an application seeking amendment in the writ petition .

The amendment sought for was allowed by this Court vide orderdated 22.11.07. Accordingly, the amended writ petition has been filed by the petitioner wherein in addition to the challengealready made, the petitioner has also assailed the validity ofdecision of Unfairmeans Committee dated 24.8.06 (AnnexureR/1).

It is submitted on behalf of the petitioner that the saiddecision dated 24.8.06(Annexure R/1) has never beencommunicated to the petitioner . Had the respondentcommunicated the said decision, the petitioner would not haveprosecuted his study of B.C.A.-Part I Examination, 2007 . It iscontended that the said order has been passed by therespondents without giving an opportunity of hearing to thepetitioner. Thus, the said decision is illegal and arbitrary so as toviolative of Article 14 of the Constitution of India.

Reply to the amended writ petition has been filed on behalfof the respondents. It is contended by the learned counselappearing on behalf of the respondent University that the factthat the material for copying was found in possession of thepetitioner stands fortified from the form filled in at the time ofchecking which bears the signature of the petitioner . It is statedthat the report of subject expert was also obtained before takingthe decision which also confirms that the petitioner has used thematerial found in his possession while answering the questionnos. 3 and 6 set out in the question paper. It is submitted by thelearned counsel that the procedure laid down has been followed and there is no provision incorporated in the Ordinance of therespondent University providing for giving an opportunity ofhearing to the candidate, therefore, the decision taken cannotfaulted with.

I have heard the learned counsel for the parties,considered the rival submissions and also perused the record ofthe proceedings leading to passing of the order dated 24.8.06(Annexure R/1), produced by the respondents for the perusal ofthis Court in pursuance of directions issued vide order dated5.12.07.

It is not in dispute that unauthorised material havingrelevance to the syllabus of the examination concerned wasfound in possession of the petitioner. However, a perusal of thereport regarding unfairmeans adopted, prepared at theexamination centre, reveals that the petitioner has denied thatthe material recovered was used by him. It is also not in disputethat before passing the order impugned Annexure R/1, cancellingthe petitioner's examination for the year 2006 and debarring himfrom appearing in any examination for the year 2007, noopportunity of hearing was afforded to him. The respondentshave taken the stand that there is no provision in the Ordinanceof the University providing for giving an opportunity of hearing tothe candidate against whom disciplinary action is proposed. Aperusal of the office note at Sr. no. 705/01 at page 66, on the record produced by the respondents reveals that the DisciplinaryCommittee while proposing the punishment against thecandidates found using unfairmeans, kept the seven matterspending for giving personal opportunity of hearing to thecandidates. Thus, the stand taken by the respondent Universitythat in no case, opportunity of hearing is afforded to thecandidates, does not appear to be correct. There is nothing onrecord to show that why those seven candidates were chosen fordifferent treatment being given.

It is urged by the learned counsel that before taking adecision imposing punishment of cancellation of the currentexamination and debarring the petitioner from appearing in anyexamination for the year 2007, a report of the subject expertwas obtained , who opined that the incriminating material wasused for solving the question nos. 3 and 6 set out in the questionpaper. It is not the case of the respondents that the copy of thesaid report was disclosed/supplied to the petitioner during thecourse of the proceedings and any explanation was sought fromhim in this regard. The petitioner having denied the factum ofcopying, at least , it was expected from the respondent toapprise him about the said report and seek his explanation, ifany. Neither the Standing Committee for Unfairmeans makingrecommendation for imposition of the punishment, nor theDisciplinary Authority taking a decision to impose the punishment has recorded any reasons while passing the orderimpugned. It is true that the adequacy or sufficiency of thereasons recorded by the adjudicating authority may not be goneinto by this Court but, at least, the precise reasons for holdingthe candidate guilty and imposing the punishment must berecorded by the authority concerned. Thus, in my consideredopinion, the order impugned has been passed in violation ofbasic principle of natural justice.

Conclusion

There is yet another aspect of the matter. The petitionerhas denied the receipt of the order impugned . It is not indispute that the petitioner was accorded admission in the B.C.A.-Part 1 afresh in the S.P.U. College, Falna and in pursuancethereof, he has studied during the entire academic session andhas also appeared in the examination. The respondent Universityhas taken the stand that the copy of the order was sent to thepetitioner so also to the college concerned. No material has beenplaced on record to show that the order impugned was sent tothe petitioner by the respondent University.Thus, there is noreason to disbelieve the petitioner that he has not received theorder impugned said to have dispatched by the respondentUniversity.

It is to be noticed that even order impugned (AnnexureR/1) dated 24.8.06 does not contain any reasons for finding ofguilt recorded against the petitioner or for imposition of the punishment as aforesaid. According to the respondents, since thepetitioner has been found guilty for the possession ofunauthorised material and have copied from the materialrecovered, therefore, the punishment of cancellation of currentexamination and further debarring from appearing in anyexamination for the year 2007, has rightly been passed in termsof clause 4(c) of Rules dealing with cases of unfairmeans anddisorderly conduct at the university examination.

As noticed above, the factum of material having relevanceto the syllabus of the examination concerned being found inpossession of the petitioner has not been disputed. Therefore, asper clause 4(b) of the Rules for dealing with the cases ofunfairmeans and disorderly conduct at the universityexamination, the petitioner's current examination is liable to becancelled.Therefore, I do not find any reason to interfere withthe order impugned passed by the respondents to this extent.However, in view of the discussion above, the order debarringthe petitioner from appearing in any examination for the year2007, cannot be sustained.

Accordingly, the writ petition is partly allowed. The orderimpugned Annexure R/1 to the extent of debarring the petitionerfrom appearing in any examination in the year 2007 is setaside. The respondents are directed to declare the result of thepetitioner of B.C.A.Part 1, 2007 forthwith. The petitioner shall be permitted to fill up the form and to appear in the B.C.A. Part IIexamination, if he is declared passed in the B.C.A. Part 1examination. No order as to costs.

(SANGEET LODHA),J.