Basant Kumar vs Maharaja Ganga Singh University

Sangeet Lodha, J.—By way of this writ petition, the petitioner has questioned legality of order dt. 31.8.12 passed by the respondent-Maharaja Garga Singh University (for short "the University"), whereby petitioner''s LL.B. Part-I Examination, 2012 has been cancelled allegedly on the ground that he was caught using unfair means while appearing in Paper I of the said examination. The petitioner appeared in Paper I of LL.B. Part-I Examination, 2012 at the Centre-Dr. Ambedkar Government P.G. (Boys) College, Sri Ganganagar. The allegation against the petitioner is that he was found carrying mobile phone in the examination hall and when inquiry was made by the Flying Squad regarding use of unfair means, the petitioner misbehaved with the members of Flying Squad and threatened them of dire consequences. Indisputably, the mobile phone found in the possession of the petitioner was switched off and ''was not containing any material relevant to the syllabus of the examination.

A report was submitted in this regard by the Centre, Superintendent to the respondent-University. On the basis of the report submitted holding the petitioner guilty of using unfair means, his examination of LL.B. Part-I Examination, 2012 was cancelled vide order dt. 31.8.12 issued by the Controller of Examination, invoking the provisions of Ordinance 152 of the respondent-University.

Learned counsel for the petitioner submitted that petitioner was never caught using unfair means, however, it is not disputed that the petitioner was carrying a mobile phone which was switched off. Leaned counsel submitted that the petitioner did not misbehave with the members of the Flying Squad as alleged. Learned counsel submitted that the petitioner''s entire examination has been cancelled by the respondent holding him guilty for using unfair means whereas, even as per the report which is made basis for imposition of penalty upon the petitioner, the mobile phone recovered from the petitioner was switched off and admittedly it was not containing any material relevant to the syllabus of the examination paper and therefore, the order impugned passed by the respondent-University cancelling the petitioner''s examination, holding him guilty of using unfair means is ex facie illegal and arbitrary.

On the other hand, the counsel appearing for the respondent-University submitted that on the basis of the report submitted by the Centre, Superintendent, the petitioner was found guilty of using unfair means, while appearing in the examination of Paper-I of LL.B. Part-I. Examination, 2012. Learned counsel submitted that apart from using the unfair means in the examination, the petitioner misbehaved with the members of the Flying Squad and therefore, the disciplinary action taken by the respondent-University while exercising the power under Ordinance 152(4)(b)(ii), does not warrant any interference by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India.

I have considered the rival submissions and perused the material on record.

A bare perusal of the report submitted by the Centre, Superintendent regarding the use of unfair means by the petitioner placed on record as Annexure R/2, reveals that mobile phone recovered from the possession of the petitioner was switched off. It is not the case of the respondents that the mobile phone recovered was containing any material relevant to the examination paper and the petitioner attempted to use the same. Suffice it to say that only allegation against the petitioner was that he carried the mobile phone in the examination hall in defiance of the instructions issued in this regard and misbehaved with the members of the Flying Squad.

It is not disputed before this Court that the order impugned cancelling the petitioners LL.B. Part-I examination has been passed on the basis of the report submitted by the Centre, Superintendent. A perusal of the order reveals that the petitioner has been held guilty for using unfair means whereas, what to say about such allegation being proved against the petitioner, as a matter of fact, no such allegation was ever levelled against him. The order impugned is sought to be justified by the respondent-University referring to the provision as contained in Ordinance 152(4)(b)(ii), which provides for a punishment of cancellation of present examination and further debarring of one subsequent examination if the examination is held once a year, or two subsequent examination if the examination is held twice a year, where a candidate is found having in his possession or within his reach any material relevant to the syllabus of paper concerned but has not copied or used it and his behavior on being caught is found unsatisfactory. Thus, the condition precedent for invoking the provisions of Section (Sic Ordinance) 152(4)(b)(ii) is that the material relevant to syllabus of the examination papers concerned must be found in possession of the candidate or within his reach.

As noticed above, it is not even the case of the respondents that the mobile phone recovered from the possession of the petitioner, which was found switched off at the time of checking, was containing any material relevant to the examination paper. In this view of the matter, the punishment upon the petitioner by the order impugned holding him guilty of using unfair means invoking the power under Ordinance 152(4)(b)(ii) is not sustainable in the eyes of law.

But then, as per Ordinance 152(4)(m) when a candidate is found guilty of misconduct, misbehavior or indiscipline in connection with the examination before, during or after the examination hours inside or outside examination centre, the extent of punishment may vary from cancellation of the present paper to disqualify him from appearing/passing in any university examination for a period upto 3 years including the present examination, depending upon the nature and gravity of the offence.

In the considered opinion of this Court, the allegation proved against the petitioner does fall within the purview of Ordinance 152(4)(m) and therefore, the disciplinary action could have been taken against him in terms of the said provision. On the facts and circumstances of the case, in the considered opinion of this Court, the allegation said to be proved against the petitioner cannot be said to be of such a grave nature so as to inflict the penalty of cancellation of entire examination. It is pertinent to note that in the instant case, the petitioners LL.B. Part I Examination, 2012 was cancelled and as stated by the counsel appearing for the petitioner before this Court, the petitioner has not appeared in the subsequent examinations and thus, the petitioner has already suffered the loss of two years. In this view of the matter, instead of remanding the matter to the respondent-University for taking the appropriate disciplinary action against the petitioner in terms of provisions of Ordinance 152(4)(m), in the interest of justice, this Court considered appropriate to reduce the penalty imposed upon the petitioner from cancellation of his entire LL.B. Part I Examination to the cancellation of the examination paper wherein he was found to have indulged in the act of discipline/misbehavior. In the result, the writ petition is partly allowed. The order impugned passed by the respondent - University cancelling the petitioner''s LL.B. Part I Examination 2012 is quashed. The penalty imposed shall stand substituted by cancellation of the examination paper wherein he was found to have indulged in act of indiscipline/misbehavior. The respondent-University is directed to declare the result of the remaining papers of the petitioner''s LL.B. Part-I Examination, 2012 within a period of two weeks from the date of receipt of certified copy of this order. Needless to say that the petitioner shall be permitted to pursue his LL.B. Course further depending upon the result of the examination to be declared by the respondent-University pursuant to the order passed by this Court as aforesaid. No order as to costs.