Manisha Sharma vs Guru Nanak Dev University and Others

V.K. Bali, J.—Maninsha Sharma, through present petition filed by her under Article 226 of the Constitution of India, seeks writ in the nature of certiorari so as to quash orders, Annexure P-6, P-9 and P-11 vide which she was disqualified from appearing in any examination of the Guru Nanak Dev University for a period of two years under ordinance 10(a) read with Ordinance 11 of the Guru Nanak Dev University Calendar, Volume II, Part B, 1991. The relief asked for in the writ, as mentioned above, flows from the following facts:

It is pleaded that petitioner has brilliant academic record. She secured 612 marks out of 800 in the Middle Standard examination in March, 1985 and, thus, got 76.5% marks. In the matriculation examination held in March, 1987 by the Punjab School Education Board, she obtained 644 marks out of 800 getting first division with distinction by scoring 80.5%. She secured 302 marks out of 450 in her Senior Secondary Examination conducted in April 1988 and improved her performance in the + 2 examination conducted by the University. Alongwith the letter aforesaid, she also received the decision rendered by the Standing Committee on March 17, 1993. She preferred an appeal to the Vice Chancellor pleading therein that the Standing Committee never recorded categorical finding that her answer book showed that she had received any help from any source and, therefore, in the absence of such finding, she could not be disqualified. The appeal was, however, dismissed summarily by a non-speaking order dated August 3, 1993 (Annexure P-11). It is this decision of the standing committee confirmed by the Vice Chancellor which has been styled to be arbitrary, illegal and unjust as also against the mandatory provisions of the Guru Nanak Dev University Calendar.

Mr. Khehar, learned counsel for the petitioner has basically raised two issues. The first contention of the learned counsel is that in accordance with Clause-9 of Chapter XII of the GND University Calendar, Part-II, if during the University examination, a candidate was found having in his possession or accessible to him papers, books, notes or other material, which even did not relate to the subject of the examination of the day and which could not possibly be of any assistance to him, no action shall be taken against him. The Superintendent shall nevertheless promptly report the case to the Registrar and all the papers seized shall be sent alongwith the report. The incriminating material found in possession of petitioner, it is stated, did not relate to the questions that were to be answered and set out in the paper of Anatomy when she was attempting the said paper. With a view to substantiate the contention, noticed above, Mr. Khehar argues that the word ''and'' immediately after the word ''day'' mentioned in Clause 9 should be read as ''or''. If word ''and'' is read as ''or'' then in that case since petitioner could not possibly take any assistance from the material found from her possession, no action could have been taken against her. Clause-9 of Chapter XII of the GND University Calendar Part-II runs as follows:-

"If during a University examination, a candidate is found having in his possession or accessible to him papers, books, notes or other material, which do not relate to the subject of the examination of the day and which could not possibly be of any assistance to him, no action shall be taken against him. The Superintendent shall nevertheless promptly report the case to the Registrar and all the papers seized shall be sent alongwith the report."

It is submitted that if papers, books, notes or other material do not relate to the subject of the examination of the day, the same would necessarily be of no assistance and, therefore, if word ''and'' is not read as ''or'' then the words ''which could not possibly be of any assistance to him would be surplusage. The argument appears to be attractive but when examined in the context of. the intention underlying the clause, the same recedes from its prima facie attractiveness. Obviously, papers, books, notes or other material which do not relate to the subject of the examination at all, is of no meaning and no one for simply carrying such books, papers, notes or other material comes under any of the mischives styling his act to be falling under unfair means. However, to make it doubly sure that such material is of no help to a student, it has further been provided that such papers, books, notes or other material should be such, which can not possibly provide any assistance to the student. Further, it is not unknown that students intending to use unfair means would not know what exactly would be the questions that they shall have to answer in the examination hall. They would carry with them material pertaining to important questions for which there is high expectation that the same would be set out in the question paper. If the material taken by them does not relate to the questions put, it cannot be that the student did not indulge in unfair means. The first contention of learned counsel has, thus, to be repelled.

Mr. Khehar, however, appears to be on surer ground while relying upon Clause-8 of the GND Calender Part-II to contend that the petitioner was, in the circumstances of this case, not liable to be punished by debarring her to appear in any examination of the University for a period of two years when lesser penalty for the precise unfair means indulged in by her was provided. For appreciating the contention of learned counsel, Clause 8 needs to be noticed:

"The answer-book in which the use of unfair means is alleged shall be seized by the Superintendent, and the candidate concerned shall be permitted to answer the remaining part of the question paper on a separate answer book. The Superintendent shall forward both the answer books, alongwith his report in form EC-20, to the Registrar. The candidate shall not forfeit his right to appear in the rest of the examination in subsequent papers."

The bare reading of the clause would leave no one in doubt that on allegation of unfair means used, the paper in which such unfair means were used had to be seized by the Superintendent and the candidate was, in such circumstances, to be permitted to answer the remaining part of the question paper on separate answer-book. The candidate was not to forfeit his right to appear in the rest of the examination for subsequent papers. In the petition, replication and additional affidavit filed in this case it has been pleaded that on July 20, 1993 to July 23, 1993 the Standing Committee of the Guru Nanak Dev University had exonerated as many as 40 candidates on the ground that Clause 8 aforesaid was violated. In paragraph 3 of the additional affidavit dated September 6, 1993, particulars of three candidates, who were exonerated, have been given. Reply of the respondent-University on the aforesaid precise question is rather interesting. In the additional written statement filed by Shri Darshan Singh, Registrar of the University it has been pleaded that the facts of the persons, reference of whom has been given in the additional affidavit filed by petitioner, were different. While, however, giving reply to the first contention of the learned counsel for the petitioner that it was Clause 8 that was to be followed, all that has been pleaded is that the candidate is permitted to have the second answer book if he so requires. Petitioner neither exercised her right of obtaining second answer book during examination nor mentioned violation of this right in her statement in form EC-20. She did not even complain to the University afterwards that she was refused the second answer book and more so she even did not take this plea before the Standing Committee. The allegation of petitioner is, thus, stated to be after thought.

In as much as the petitioner deserves the relief on the basis of submissions made by learned counsel stemming from Clause-8, there is no necessity to go into the distinction sought to be made out on facts of petitioner and those three who were exonerated, even though, prima facie, distinction pointed out seems to be illusory. From the pleadings as extracted above, it would be apparent that the case of petitioner was also covered under Clause-8. All that has been pleaded to deny the applicability of Clause 8 in her case is that she did not opt for the procedure mentioned in Clause-8. It is settled law that if the case of a person is covered under two clauses, one prescribing higher punishment and the other lesser one, then it is the latter one which shall be enforced. Had the case of petitioner been dealt under Clause-8, and it may be mentioned again that it is not denied that it was covered under Clause-8, then in that case petitioner would not have forfeited her right to appear in the rest of examination in subsequent papers whereas admittedly she has been debarred from appearing in any examination of the University for a period of two years. If her case was covered under Clause-8, then the respondents cannot apply a clause which provides for far more deterrent punishment only on the ground that petitioner did not opt for the procedure that was prescribed under Clause-8. The students do not know, nor are supposed to know the details of procedure that is made applicable to them in unfair means matters. It was, thus, for the respondents to have apprised the petitioner that she could opt for another answer book and attempt the remaining part of questions. Having not chosen to do so, respondents proceeded in the matter in an arbitrary manner. No distinction can be made on the ground that others who were dealt with under Clause 8 and were given lesser punishment, had opted for providing them separate answer books. As held above, respondents were duty bound to apprise the student that such a course was open to him or her.

For the reasons recorded above, this petition is allowed. Orders, Annexure P-6,P-9 and P-11, are quashed. A further direction is issued to respondents to declare the result of papers that petitioner, if at all, took subsequent to the paper of Anatomy. Parties are, however, left to bear their own costs.