Hon'ble Kashi Nath Pandey,J.
We have heard Sri A.D. Saundars, learned counsel for the appellant. Sri B.D. Pandey appears for the respondent University.
The petitioner-appellant is aggrieved by the judgment of learned Single Judge dated 30.11.2006 dismissing the writ petition of the petitioner-Sri Vinai Kumar and 18 others.
The writ petition was filed by 19 persons whereas the Special Appeal has been filed only by the first petitioner, Sri Vinai Kumar.
The petitioner was enrolled as a student of LLB, in Sant Vinoba Post Graduate College, District Deoria affiliated to Deen Dayal Upadhyaya Gorakhpur University, Gorakhpur. He cleared, first two years of LLB course, and also the fifth semester. When he was going to appear in the sixth and final semester, he along with other petitioners was not allowed by the University, to take examination on the ground that his result of second year LLB was cancelled, for manipulating the college records and mark sheets. They had failed in the second year LLB examinations.
The petitioner was informed that according to the University chart, he had failed in the LLB second year examination in the year 1997, and had provided a false mark sheet by manipulating the record, showing that he had passed the examination.
The petitioner and others had filed a writ petition No. 1510 of 1999, which was disposed of on 18.5.2001 directing Examination Controller of the University, to take a decision in the matter within two months.
The petitioner submitted a reply to the show cause notice, after which the impugned order dated 6.7.2001 was passed.
The Examination Controller, after hearing the petitioner and examining the records found that the petitioner appeared in LLB IInd year examination in 1997 with Roll No. 121284, and was declared to have failed, vide notification of the University dated 20.4.1998. A mark sheet was issued to him, by manipulation, showing that he has passed LLB second year examination, on which the petitioner took admission in LLB third year. He cannot be treated to have passed LLB Second year, and since he had manipulated the record, his result of LLB second year was cancelled, and the college was directed, to correct the records.
Learned Single Judge, vide order dated 29.8.2006, called for the records, and examined the original tabulation sheets prepared by the Examiner, University and the College, in that order. He observed that these charts were shown to the counsel for the petitioners also. The writ petition was filed by 19 petitioners, however, when the University was directed to decide the matter afresh, the University held that in the case of all the 19 petitioners-students, there was some foul play in their result of LLB first and second year. Only 7 petitioners challenged the order of the University. The counsel for the University stated that in the tabulation chart of the University also there was manipulation in the case of four students, and in the case of three students viz., petitioner Nos. 4,10, and 12, manipulation was in the tabulation chart of the college. The counsel for the College stated that the college did not make any manipulation in the tabulation chart, and that the tabulation chart, as supplied by the University contained several corrections, over writing, cutting etc. In the impugned judgment, the learned Single Judge has found as follows.
"The case of the respondent No.1 University is that all the petitioners had failed in their first year/second/year examination, however, an employee of the University had made interpolation in the tabulation chart in such manner that the marks of the petitioners in the papers in which they had failed were scored off and change with passing marks. Later on the fraud was detected and thereafter action was taken against the delinquent employee and he was removed. Original tabulation chart and the sheets on which the Examiners note the marks of the Examinees were shown to the court by learned counsel for the University and photocopies were filed. From the sheets, it is quite clear that all the petitioners had failed in one or more subjects. In the tabulation chart, manipulation is quite clear to the naked eye and is fully substantiated by the sheets prepared by the Examiners. Even in the tabulation chart of the college manipulation is quite clear."
The writ petition was dismissed on the ground that no estoppel can be pleaded against the University.
Learned Single Judge relied upon a decision of Supreme Court in Bhaskar Tiwari Vs. U.P. Technical University, Lucknow and others [2004 (5) ESC 116] in holding that question of estoppel does not arise in such case.
Sri A.D. Saunders submits that firstly, there was no manipulation made by the petitioner. There was nothing to show that the petitioner was involved of, or had taken part in manipulating the records. In any case, the petitioner was not supposed to gain anything out of manipulation. If his marks in the IX th paper (Legal Theory and Comparative Law) are corrected, he would still score 47 marks in total (instead of 57 marks) and that in the XI th paper (Legal Hindi and Marketing Law) if the marks in second examination are corrected from 24 marks to 14 marks, he will score 43 marks in total, and in the X th paper in which if the marks are corrected from 17 to 6 in second examination, he would be declared to have failed with another chance under Statute 22.06 to improve the result. The petitioner did not gain by manipulating the marks. He could have improved his result by taking second chance, and thus allegations against him are not only incorrect but entirely misleading.
The marks given by the examiner are entered in the original tabulation chart. This chart is sent to the University where tabulation chart is prepared and cross check list is prepared for the college. Learned Single Judge examined the original tabulation chart, and found that the chart maintained by the University and the College did not tally. In the tabulation chart, manipulation was quite clear and fully substantiated by tabulation sheets prepared by the Examiner.
We do not find any good reasons to interfere with these findings. When the learned Single Judge has examined the tabulation charts himself, there is no reason to take a different view.
So far as submission that even if the mark sheet is prepared on the basis of Examiner's tabulation chart, the petitioner would get a chance to improve his mark in Xth Paper, we may observe that where a person is guilty in preparation of false result, the motive as to why he would have prepared false charts, which ultimately would not benefit him, is not required to be examined by the court.
The petitioner did get benefit from manipulation made by him, by getting admission in LLB third year. It was only after manipulations were detected, he was stopped from appearing in the sixth semester examination. The motive for fraud is not a ground with which the court may interfere. If the manipulation was not detected, the petitioner could have passed the examination, playing foul with the whole system.
In the end, Sri A.D. Saunders submits that the petitioner has already wasted several years and thus in equity, he should be allowed to appear second year LLB examination again.
Sri B.D. Pandey would submit that after three years of declaration of result, the petitioner is not allowed to take admission in the same year of the course. As his result was cancelled on account of manipulation, now after 11 years it is not possible for the University to enroll him as a student of LLB and allow him, to take examination.
If the petitioner was keen in taking in admission in the University afresh, he had sufficient opportunity in the last 10 years, to request the court for allowing him to study in LLB second year afresh. He took a chance in the Special Appeal, and has not succeed.
The Special Appeal is dismissed.
Order Date :- 14.9.2010 nethra