(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The present appeal is filed against order passed by the learned Single Judge in Special Civil Application No.16984 of 2011 dated 17.01.2012, whereby the learned Single Judge, while admitting the petition by issuance of Rule returnable on 29.02.2012, was pleased to grant interim relief. The relevant part of the order reads as under:-
"13. Hence RULE returnable on 29/2/2012. By way of interim relief the order impugned i.e. 13/10/2011 is stayed and the University is directed to declare the result of the petitioner as if there was no irregularity found in petitioner's examination of the subject matter. However the declaration of the result would be subject to final outcome of this petition."
(emphasis supplied) 1.2 The interim relief is granted in terms of para-8.C), which is quoted in the order itself, which reads as under:-
"8. C) Pending admission and till final disposal of this petition, grant stay as to execution, operation and implementation of the impugned order dated 13/10/2011 passed by the respondent no.1 (Annexure-A) in the interest of justice."
2. Heard learned Advocate Mr.Amit M.Panchal for the appellant-Hemchandracharya North Gujarat University and learned Advocate Mr.Dharmesh Patel for the respondent-Student.
3. Learned Advocate for the appellant-University invited attention of the Court to the contents of para-14 of the impugned order. The said para reads as under:-
"14. Shri Panchal for the University at this stage stated that the Court may stay the operation of this order for a period of ten (10) days. Learned advocate for the petitioner objected to this request. This Court is of the view that the interim order is required to be stayed so as to enable the respondent to carry it into appeal, if so advised. Hence it is stayed till 27/1/2012. However, this stay of the interim relief would not be held against the petitioner and he would be entitled to fill-in the form. In case he is required to act in any other manner, the same shall also be permitted like filling of form etc. for further course studies. However the same would be subject to the final outcome of the petition."
(emphasis supplied)
4. Learned Advocate Mr.Dharmesh Patel for the respondent-student objected to the hearing of this appeal by saying that he has received copy of the appeal only yesterday. He requested for adjournment. The same was declined.
Learned Advocate for the appellant-University pointed out that learned Advocate for the respondent-student is appearing on caveat.
4.1 Learned Advocate for the respondent-student submitted that the present LPA is not maintainable because it is filed against an interim order. In this regard, learned Advocate for the respondent-student relied upon a decision of a Division Bench of this Court in the matter of Varvabhai Nathabhai Rabari & Ors. Vs. State of Gujarat & Ors., reported in 2001 (3) GLH 681. Learned Advocate for the respondent-student invited attention of the Court to para-16 of the judgment, which reads as under:-
"16. We do not propose to reiterate the facts of all the aforesaid cases, but, the fact remains that it is a settled legal position that the Court shall restrain itself from interfering with the interim orders, more particularly, in intra court appeals. We are fortified in our opinion from various judgements of the Apex Court."
(emphasis supplied) 4.2 On reading this para, the Court inquired as to whether the said decision will be applicable to the facts of the case on hand. In this regard, learned Advocate for the respondent-student invited attention of the Court to paras-1 and 2 of the judgment, from where the facts can be cowed out. The said paras read as under:-
"1. The present Letters Patent Appeal is filed by one Varvabhai Nathabhai Rabari, who was the Chairman of the Agricultural Produce Market Committee, Patan, and 10 others, who are the members of the Agricultural Produce Market Committee. The Letters Patent Appeal is filed being aggrieved of the order passed by the learned Single Judge dated 11th September, 2001, whereby the learned Single Judge has admitted the petition, but, has refused to grant the interim relief.
2. The learned Advocate appearing for the appellant assailed the order on the ground that the learned Single Judge has refused the interim relief without assigning any reasons for the same. It was also contended by the learned Advocate appearing for the appellants that the order dated 13th/18th August, 2001 produced at Annexure-A to the petition is required to be quashed and set aside and the petitioners, appellants herein, are required to be restored as the members of Patan Agricultural Produce Market Committee. The learned Advocate submitted that the learned Single Judge ought to have examined the prima facie case and should have taken into consideration the fact that the supersession order of the Market Committee which is purported to have been based on the report of the inquiry conducted under section 44 of the Agricultural Produce Markets Act, 1963 (hereinafter referred to as "the Act"), but, the inquiry report itself suggested that action under section 46 is not desirable."
(emphasis supplied)
5. In the considered opinion of this Court, the aforesaid decision is to help the appellant-University rather than the respondent-student. In the present case, interim relief which is granted is virtually allowing the petition.
6. During the course of arguments, learned advocate for the respondent-student pointed out that the respondent-student is pursuing B.Ed. course in the same University and he is to fill in the examination form for the same. By the order impugned, he is debarred from appearing in any examination of the University till March-June 2012. Now, if result is declared and pursuant to that result declaration, if he is to fill in the form and he is to appear, that amounts to allowing the petition. By merely suffixing the order by saying that, interim relief is subject to final outcome of the petition, does not take away the real/actual effect of the interim relief, granted by the learned Single Judge.
6.1 Learned Advocate for the appellant-University then invited attention of the Court to the core point in the matter. It is the case of the respondent-student that he was not heard by the University and therefore, there is breach of principles of natural justice. Learned Advocate for the appellant-University invited attention of the Court to the fact that the University had issued notice to the respondent-student on 03.09.2011 and had asked the respondent-student to appear before the 'Suddhi Samiti' on 17.09.2011. Learned Advocate for the appellant-University made available for perusal copy of the notice kept in the University record. Learned Advocate for the appellant-University then invited attention of the Court to the original statement, duly signed by the respondent-student, wherein he has stated that, "Today - 17.09.2011, I was given opportunity to present (speak out) before the Samiti. I have represented by case as per my ability. The Samiti heard me to my satisfaction".
6.3 Learned Advocate for the appellant-University invited attention of the Court to Ordinances-111, 115, 126 and 127 framed under the Hemchandracharya North Gujarat University Act and submitted that the University has acted in accordance with law in the matter of imposing punishment on the erring student.
7. Learned Advocate for the respondent-student was given this document to peruse and was requested to point out from the petition as to whether he has mentioned this particular fact. In this regard, learned Advocate for the respondent-student invited attention of the Court to para-3.7 of the petition, which reads as under:-
"3.7 As the petitioner had never adopted any such unfair means during the examination, he remained present before the respondent no.1 on the given date i.e. on 17/09/2011 .
On that day, the petitioner has not been heard by the respondent no.1 and it was conveyed by the officers of the respondent no.1 that the respondent no.2 has informed us that your impression is not good in past, and hence you will be punished and appropriate order will be sent to you. That it was also told to the petitioner to give in writing the simple denial of the charges, which has been given by the petitioner, but the petitioner was never been heard by the respondent authority at that point of time."
(emphasis supplied) On the face of it, these statements amount to presentation of incorrect facts before the Court. The petition deserves to be dismissed on the ground of suggestio falsi.
7.1 Learned Advocate for the respondent-student then invited attention of the Court to Annexure-B, page No.12, a letter written by the respondent-student to the University, as his number was notified in the result in 'malpractice' column. Learned Advocate for the respondent-student then invited attention of the Court to Annexure-C, page No.13, communication dated 03.08.2011 and Annexure-D, page No.14, communication dated 08.08.2011. Learned Advocate for the respondent-student submitted that he has a good case on merits; because there is a clear breach of principles of natural justice. Besides he submitted that as the matter is already fixed for final hearing on 29.02.2012, this appeal may not be entertained.
7.2 Learned Advocate for the respondent-student emphatically submitted that notice dated 03.08.2011 was replied by letter dated 08.08.2011 (page No.14-Annexure-D) and the respondent-student had asked for copies of all the documents on the basis of which the respondent-student was punished. Not only that, the respondent-student had also asked for copies of the Rules of the University and the resolution of the University along with the report of the Advisory Committee to show that the Vice Chancellor has power to punish a student - the present respondent.
The respondent-student did not ask for any papers when he appeared before the Committee.
7.3 During the course of arguments, learned Advocate for the respondent-student submitted that if the Court so feels, the interim relief may be modified to the extent that, ' the respondent-student will not act upon the result declared by the University'. It was inquired from the learned Advocate that if the interim relief is so modified what benefit will be derived by the respondent-student from declaration of result. With hesitation, learned Advocate for the respondent-student submitted that student may be able to appear in the B.Ed. examination, as is provided in para-14 of the order of the learned Single Judge.
7.4 Learned Advocate for the respondent-student reiterated his submission about non-maintainability of the appeal against an interim order, relying upon a decision of the Hon'ble the Apex Court in the matter of Manubhai J.Patel & Anr. Vs. Bank of Baroda & Ors., reported in (2000) 10 SCC 253.
Learned Advocate for the respondent-student invited attention of the Court to para-7 of the said decision, which reads as under:-
"7. Since the question about the maintainability of the appeal against the interim order, passed by the Single Judge of the Bombay High Court, was specifically raised on behalf of the appellants in the High Court, the Division Bench before proceeding to determine the amount of royalty, ought to have decided the preliminary objection as to the maintainability of the appeal. This having not been done, the ends of justice, we feel, have suffered."
Relying upon the observations of the Hon'ble the Apex Court without any reference to context is of no help to the respondent-student.
8. Coming to the case on hand, it is a clear case wherein the student has presented wrong facts before the Court. He, having appeared before the 'Suddhi Samiti', having given in writing about an opportunity given to him for presenting his case and having further stated that he was satisfactorily heard, to state in para-3.7 that, 'the petitioner has not been heard by the respondent no.1' and to further state that, 'but the petitioner was never been heard by the respondent authority at that point of time', amounts to clear suppression of material fact.
8.1 Out of frustration, the respondent-student has not spared even the college in which he was studying for his M.Sc. Course. In para-3.7 of the petition, the respondent-student has made allegations against the college by saying that, "..... it was conveyed by the officers of the respondent no.1 (University) that the respondent no.2 (College) has informed us that your impression is not good in past.....".
8.2 Dr.Kishor Pandya, Principal of respondent No.2-College has filed an affidavit to the main petition, wherein in para-3, it is stated that:-
"3. Regarding 3.7, the averments and allegations which are made by the petitioner are not true and correct because there is no correspondence between the respectfully No.1 i.e. Hemchandracharya North Gujarat University with Sir P T Science College at Modasa and, therefore, there is no occasion to meet with the respondent No.1 wherein the College has given any negative opinion regarding the impression of the petitioner with the College."
8.3 The Court is of the opinion that this is a fit case wherein notice for criminal contempt is required to be issued against the respondent-student, but taking a lenient view in the matter, the Court restrains itself from issuing such notice for criminal contempt. However, the Court will be failing in its duty if the petition itself is not dismissed with exemplary cost to set an example as is observed by the Hon'ble the Apex Court in paras-7, 11, 12 and 18 in the matter of Director (Studies), Dr.Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh & Ors. Vs. Vaibhav Singh Chauhan, reported in (2009) 1 SCC 59.
The said paras read as under:-
"7. In this connection learned counsel for the respondent submitted that there was no evidence to show that the respondent had actually used the said slip of paper found in his possession. In our opinion, this is wholly irrelevant. All that is relevant is whether the slip of paper found in the possession of the examinee pertained to the examination paper in question. If it does, then it is a malpractice. In this particular case, the said slip of paper was brought into the examination hall and was found to be in the possession of the examinee while the examination was going on. Whether the respondent actually used that slip or not is irrelevant. This view finds support from the decision of this Court in C.B.S.E. vs. Vineeta Mahajan & another (1994) 1 SCC 6. Moreover, this is also borne out by sub rule (1) of the Examination Rules, quoted above.
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11. Coming to the interim order of the learned Single Judge dated 31.3.2006, it may be noted that in the very second sentence of the order the learned Single Judge stated that the record did not bear out whether the chit had actually been used in the examination. As already noted above, this was a wholly irrelevant consideration. Once it is found that the chit/piece of paper contains material pertaining to the examination in question it amounts to malpractice, whether the same was used by the examinee or not.
12. The learned Single Judge in the interim order has then emphasized on the fact that the respondent had apologized and had confessed to the possession of the chit. In our opinion this again is a misplaced sympathy. We are of the firm opinion that in academic matters there should be strict discipline and malpractices should be severely punished. If our country is to progress we must maintain high educational standards, and this is only possible if malpractices in examinations in educational institutions are curbed with an iron hand.
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18. We are afraid we cannot agree with the view taken by the learned Single Judge. As already stated above, we have to be very strict in maintaining high academic standards and maintaining academic discipline and academic rigour if our country is to progress. Sympathy for students using unfair means is wholly out of place."
9. In view of the aforesaid observations, this Court is of the opinion that this is a fit case wherein appellant-University should be recommended to reconsider the case of the respondent-student, because in the opinion of the Court, the punishment imposed is too lenient. The Court accordingly recommends to the appellant-University to take the case on hand again and consider to impose appropriate punishment.
10. The present LPA is allowed. The petition (SCA No.16984 of 2011) is dismissed with costs of Rs.20,000/- (Rupees Twenty Thousand Only). Deposit of this cost is made condition precedent to file any further proceedings in the matter.
(Ravi R.Tripathi, J.) (G.B.Shah, J.) *Shitole Top