1. By way of this petition, the petitioner has prayed to quash and set aside the impugned decision dated 02.11.2011 bearing No. Legal/669/2011 whereby the petitioner has been debarred from appearing in the examination for three years i.e. upto 30.06.2012.
2. The facts in brief are that the petitioner is a student of Third year M.B.B.S. PartII of Shri M.P. Shah Medical College, Jamnagar. The petitioner appeared in the examination on 04.08.2011 for his repeat term paper of Surgery PartII. While the examination was in progress, the Supervisor allegedly found that the petitionerstudent was having an electronic gazette, which was expressly barred from the examination centre. The matter was immediately reported to the authorities concerned and ultimately, after following proper procedure, the impugned order/decision dated 02.11.2011 at AnnexureB was passed. Hence, this petition.
3. Mr. Joshi, learned counsel for the petitioner submitted that the punishment imposed upon the petitioner is harsh looking to the misconduct alleged against the petitioner inasmuch as there is no evidence that the petitioner had made use of the electronic device. He submitted that the decision to debar the petitioner from the examination for three years is in violation of Articles 14, 15 and 21 of the Constitution of India.
4. He further submitted that for identically situated persons, the competent authority had imposed a lenient punishment. He, therefore, submitted that the punishment imposed in not in consonance with any of the Ordinance or Rules.
5. Mr. Soni, learned AGP for respondent no. 1 supported the submissions advanced by Mr. Thacker learned counsel for respondents nos.2 and 3.
6. Mr. Thacker, learned counsel for the respondents submitted that as per Ordinance No. 160A of The Saurashtra University Act, while the candidate is appearing in an examination in the examination hall, he should not possess any electronics gadget. These instructions are also issued while publishing Time Table of the examination and also in every answer book, more particularly, in Clause13. He submitted that during the examination hours, the Supervisor found that the petitioner was having electronic gadget and therefore, the competent authority issued show cause notice dated 08.10.2011 to the petitioner. Pursuant thereto, the petitioner made a representation dated 14.10.2011 to the Examination Disciplinary Committee, whereby during the hearing, the petitioner admitted his guilt. Thereafter, the competent authority passed the order dated 02.11.2011. He therefore submitted that it is very serious offence and it is absolutely the discretion of the authority to impose the aforesaid punishment. Therefore, it would not be appropriate for this Court to interfere with the impugned order and the petition deserves to be dismissed.
7. In support of his submission, he placed reliance on the following decisions :
1. In the case of Sanjay Mukundrai Desai v. The Registrar, South Guj University 1986 GLH 1089.
2. In the case of Central Board of Secondary Education v. Vineeta Mahajan & Anr 1994 (1) GLH 71.
3. In the case of Sardar Patel University v. Minal R Jogi & Anr. 2000 (2) GLH 199.
4. In the case of Gujarat Secondary Education Board v. Sunny Dharampalsingh Chaudhary minor through father 2000 (2) GLH 90.
5. In the case of Director (Studies) Dr.Ambedkar Institute of Hotel Management Nutrition & Catering Technology Chandigarh & Ors., v. Vaibhav Singh Chauhan (2009) 1 SCC 59.
6. Bhushan Uttam Khare vs. Dean, B.J Medical College reported in (1992) 2 SCC 220.
7. National Board of Examinations vs. G. Anand Ramamurthy reported in (2006) 5 SCC 515.
8. All India Council For Technical Education vs. Surinder Kumar Dhawan reported in (2009) 11 SCC 726.
9. Controller of Examinations vs. G.S Sunder reported in 1993 Supp (3) SCC 82.
10. Meerut Development Authority vs. Association of Management Studies reported in (2009) 6 SCC 171.
11. The Keshav Mills Co. Ltd and Another vs. Union of India and Others reported in (1973) 1 SCC 380.
12. A.K. Kraipak and Other vs. Union of India and Others reported in AIR 1970 SC 150.
13. In the case of Malavkumar Arunbhai Patel v. Sardar Patel University rendered in Special Civil Application No. 11587 of 2000 dated 04.11.2006.
8. Heard learned counsel for the respective parties and perused the documents on record. It appears from the record that the petitioner had an electronic device in his possession while attending the examination, which was expressly prohibited under the Ordinance. In the inquiry conducted by the authority, the petitioner admitted his guilt. However, considering the fact that the impugned penalty of debarring the petitioner for a period of three years would cause severe damage to the entire career of the petitioner, it would be appropriate to take a sympathetical view in the matter by reducing the penalty since in identical case for other branches, the authority has imposed a lesser punishment, which has not been disputed by the learned counsel appearing on behalf of the respondents.
9. Considering the peculiar facts of the case and keeping in mind the decision rendered by this Court in Special Civil Application No. 16984 of 2011 dated 09.08.2012, the impugned order/decision dated 02.11.2011 passed by respondent no. 2 University is required to be modified to the extent hereinbelow
10. In the result, the petition is partly allowed. The impugned decision dated 02.11.2011 passed by respondent no. 2 University is modified to the extent that the petitioner shall be debarred from appearing in the examination till 30.06.2012 as against the period of three years imposed by the respondent. Rule is made absolute to the above extent.
11. With the above directions, the petition stands disposed of accordingly.
[K.S. JHAVERI, J.] /phalguni/