Heard learned advocates for the parties. The petitioner by way of this petition filed under Article 226 of the Constitution of India prayed as under:
"8.A) Admit this petition;
B) Allow this petition by issuing a writ of mandamus or any other appropriate writ, order or direction and thereby be pleased to quash and set aside an order dated 13/10/2011 (Annexure-A) passed by the respondent no.1 and further be pleased to direct the respondents to declare the result of the petitioner of Msc. Part-II examination March-June 2011 and further be pleased to allow the petitioner to appear in other examination of the university forthwith;
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".
The facts in brief as could be set out from the memo of the petition are narrated herein below.
The petitioner, a candidate and examinee in M.Sc. Part-II examination conducted by Respondent no.1 University , on seeing his result shown his number in the column which said that the 'result of the following candidate is held in reserve for the reason of malpractice and unfairmeans'. On looking to this fact, petitioner addressed a communication on 26/7/2011. At this stage it is pertinent to note that the result was declared on 10/6/2011 and as petitioner did not receive anything pursuant to this declaration, therefore he addressed a communication on 26/7/2011, in response whereof the university sent a communication which the university has styled as 'show cause notice' on 3/8/2011, calling upon the petitioner to explain and submit if any within 7 days in respect of the unfair means and irregularities committed by him in his paper in which his number was of examinee no. 73, and it was held on 1/4/2011. In answer to this, petitioner sent his reply on 8/8/2011 in which he completely denied the allegation contained in the show cause notice. The petitioner received communication on 3/9/2011 by UPC calling upon him to remain present on 17/9/2011 at 12.00 '0' clock before the Special Examination Committee to answer the charge sheet issued to him, to which Shri Panchal stated that unfortunately petitioner has not denied the charges in the memo of the petition but he refuted the charges during personal hearing. However learned advocate for the petitioner submitted that petitioner denied the charges as per his averment made in para no. 3.7 of the petition 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 17/09/201. 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."
3. The petitioner received order dated 13/10/2011 informing him that the committee has found him guilty of malpractice in the aforesaid examination and he is debarred from appearing in any examination to be conducted by the university till March / June 2012. Being aggrieved and dissatisfied with this, present petition is preferred for the reasons recorded herein above.
4. The Court inquired of the advocates, especially Shri Panchal, as to whether the petition is to be decided finally at this stage or not, as Shri Panchal has argued at length, to which Shri Panchal submitted that he has no instruction to concede to waive rule and hence he submitted that the Court may not finally decide the matter.
5. Learned advocate for the petitioner invited this Court's attention to various grounds mentioned in the memo of the petition and contended that as per the decision of this Court in case of Malavkumar Arunbhai Patel Vs. Sardar Patel University and Ors, reported in 2006 (3) GLH pg. 695, the entire procedure which is culminated into passing of the order dated 13/10/2011 is patent and blatant breach of principle of natural justice. Learned advocate for the petitioner in answer to the charge of suppression of facts in respect of the petitioner taking admission in B.Ed course without disclosing the fact that he is subjected to some inquiry is mala fide so as to disentitle him to maintain this petition under Article 226 of the Constitution, petitioner's advocate submitted that, till the petitioner took admission in B.Ed course, there was no communication of any punishment imposed upon him nor was he informed as to whether he is likely to be visited with any punishment; though he himself has stated in para-2 that there was oral information to him by others that he has no good record therefore he is likely to be punished. Therefore petitioner cannot be branded as a person not having come to the Court with clean hands.
6. Shri Panchal learned advocate appearing for the university invited this Court's attention to the affidavit in reply and submitted that the inquiry in respect of malpractice by the examine cannot be equated with any inquiry so as to call for strict following of procedure of evidence. This Court as said by the Apex Court in many judgments need not come into the nitty-gritty of the procedure when the petitioner himself has not alleged malafide in the memo of the petition, and when it is established that the examiner concerned who found xerox slips pertaining to the very question paper and it is from answer sheet which do not even bear regular number of examinee and was bearing dummy number, the entire procedure need not be said to be in any manner irregular and or illegal. The examiner cannot have any grudge against examinee, the petitioner, nor has the petitioner alleged any malafide on the part of either examiner or the Controller of Examinations, or for that matter anyone and therefore, when the examiner has found himself xerox material from answer sheet of the examinee, the petitioner, and when it is reported to the Controller of Examinations, and it has been supported by two witnesses and when the petitioner has also expressed his satisfaction with regard to he being heard by the committee, this Court may not interfere with the impugned order and the petition be dismissed.
7. Shri Panchal showed from the record the report of examiner, xerox slips which were said to have been found and submitted which was recorded during course of hearing.
Shri Panchal further submitted that examiner/evaluator reported on 9/5/201 at 2.15 p.m. to the Controller of Examinations that subject xerox copies are related to paper, by informing him that while the examiner assessing paper-1 of M.Sc. (II) Organic Chemistry the answer book - OA-47 the examiner found 5 copies related to the paper inside the answer book and questions have been asked in the paper also. He enclosed the answer book and 5 xerox copies and referred the case to the Controller of Examinations. While submitting this report the examiner stated that:
"One answer book, 5 xerox copes with his signature and signature of 2 witnesses"
Shri Panchal very fairly agreed that this document does not disclose names of the witnesses, their designations and any writing of witnesses that they have witnessed that this examiner found this slips from answer sheet. The witnesses have not signed this report of examiner but they have signed the xerox slips.
Shri Panchal also very fairly submitted that this xerox slips which is supposed to have signature of witness on the reverse side of it do not indicative the names of the witnesses who have appended signature thereon.
In view of this, it goes without saying that the witnesses have not signed report of the examiner/ evaluator nor have they disclosed their names on backside of the slips which is said to have been recovered from the answer sheet as claimed by the explainer."
8. Shri Panchal has relied upon the decision of the Apex Court in case of Director (Studies), Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh and others, Vs. Vaibhav Singh Chauhan, reported in (2009) 1 SCC 59, and read extensively para no. 12 and 27 and also observations of Manavkumar Arunbhai Patel (supra) in para no.14 & 19, and in the case of Meerut Development Authority Vs. Association of Management Studies and another, reported in 2009 AIR SCW 4623 on page-19 & 20 of the affidavit in reply in support of his submission.
9. Shri Vishrut Jani, learned advocate appearing for respondent no.2 denied the allegations made against the college and submitted that petitioner has taken transfer certificate on 7/9/201 and there is no prayer against the college.
10. This Court is of the considered view that the indisputed facts which has emerged from the submissions as well as the pleadings deserve to be recorded hereunder, namely:
(1) The examination in question was conducted on 1/4/2011.The results were declared on 10/6/201. Present petitioner has not been informed by anyone nor has he been called upon to explain any conduct which is sought to be alleged against him.
(2) The results were declared on 10/6/2011 and in which petitioner's number was shown under column in which it was said that the result of the candidate figuring below is not declared on account of malpractice & unfair means.
(3) Thus, for the first time on 10/6/2011 petitioner came to know that there is something wrong against him or there is some allegation against him and hence his result was not declared. Petitioner till date has not received any communication from any quarter.
(4) At this stage it is also required to be mentioned that this university does not have any set principle or rules & regulations for of holding inquiry in respect of malpractice in the examination. In other words there exists no set rules & regulations and or guidelines in the form of evolving of guidelines by the concerned in respect as to how the malpractice cases are to be dealt with.
(5) As there exists no set rules & regulations dealing with such cases, naturally the petitioner was eager to know remedy for withholding of result. One may have a question in one's mind as to why and under what provision and rules & regulations the results were withheld. Till date, unfortunately, no material is even brought on record to indicate that the action of withholding of result, or conducting of any inquiry was pursuant to any such procedure acknowledged and approved by the competent authorities.
(6) The petitioner was called upon to remain present before the special committee in which the examiner was also called and it is recorded that petitioner has been heard to his satisfaction and petitioner's signature is appended thereon.
(7) The documents which were pursued by the examiner, namely report of the examiner and xerox clippings, same do not indicate anywhere that those clippings were found by the examiner from the petitoner's answer book which is witnessed by two witnesses.
(8) The examiner has in fact in his report not mentioned about witnesses nor he mentioned about the fact that clippings were found from the answer book. This sentence is added subsequently as could be seen from the report, meaning thereby, it could have been added right then. The Court does not cast any doubt so far as the writing is concerned, but this fact cannot lost sight of the Court .
(9) In the foot note of the report, the examiner has mentioned to have taken two witnesses but unfortunately those two witnesses names have not been mentioned by the examiner in the report.
At this stage Shri Panchal under the instruction of the officer of the university shows Ordinance no. 127 which deals with examination reform committee and rules made by executive committee. But at this stage it is required to be noted that there is no proceedings produced on record.
The xerox clippings which are said to have been found from the answer sheet of the petitioner, as claimed by the examiner, do not contain names of the witnesses those who have appended their signature as witnesses of the incident of examiner finding those slips from answer sheet from the examinee, i.e. petitioner.
11. Against the aforesaid factual backdrop of indisputable facts, the question arises as to whether mere admission of the petition is in any way meet the end of justice, if no interim relief is granted, as the Court is conscious that there could be an argument that at interim stage the Court may not allow the petition, but in the given set of circumstances if no interim relief is granted particularly when the advocate had shown his inability to conduct the matter finally; then this Court is left with no choice but to pass order of interim relief while admitting the mater.
12. This Court is of the prima facie view that when the examinee i.e. the petitioner was not caught red handed in the examination hall and when it is sought to have been a case of respondent that some xerox clippings were found inside the answer sheet of the examinee then it was of the more serious duty cast upon the respondent to take extra precautions for complying with the principle of natural justice. The decisions cited at the Bar on behalf of respondent university would not be of any avail as in the instant case the facts are such that the material which is said to have been found was found by the evaluator or examiner and which was said that the said finding is witnessed by two witnesses, whose names even are not mentioned on the material found nor were those witnesses called upon to explain and corroborate the say of the examiner before the Shuddi Committee. Therefor it is a fit case in which interim relief is required to be granted while admitting the petition.
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.
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.
[ S.R. BRAHMBHATT, J ] /vgn Top