Dharam Nath v. State of U. P. — 1972 DIGILAW 268 (ALL)

JUDGMENT H.N. Seth, J. - According to the allegations made in the petition, the petitioner Dharam Nath appeared in the High School Examination held in the year 1971, from A.S.G.R.S. Intermediate College, Basti Centre and his roll No 234070. There was suspicion of use of unfair means by him in answering English Second Paper. Accordingly, the declaration of his result was withheld. By a letter dated 28.1.1972, Principal of College informed the petitioner that he had been found guilty of using unfair means and that his examination for the year 1971 had been cancelled. In the course the petitioner filled in the form for appearing in Board's Examination for the year 1972, Principal of the College informed calls and two of the theory papers. Suddenly he received a registered letter dated March 18, 1972 from the Secretary Board of High School and Intermediate Education, U.P. informing him that he had been found guilty for having used unfair means in the Board's High School Examination for the year 1971 and therefore his examination for the year 1971 had been cancelled and he had been debarred from appearing in the Board's Examination for the year 1972. 2. The contention raised in the writ petition was that the respondents having the punishment, communicated to the petitioner by the letter dated 28th January, 1972, had no jurisdiction to review their order and to impose the higher punishment, subsequently communicated to him. It was also contended that there was absolutely no material before the respondents on the basis of which any conclusion that the petitioner had used unfair means in answering any question of English II paper, could be arrived at. The petitioner, therefore, prayed for an appropriate writ for quashing the order of the Board communicated to him by the letters dated March 18, 1972 and 18.1.1972. 3. The petition has been contested on behalf of the Board of high School and Intermediate Education respondent No. 2. According to the allegations made in the counter-affidavit, there were reports regarding the use of unfair means on a large scale in the High School Examination of 1971 at A. S. H. and G. R. S. Inter College Basti. In the circumstances, the answer books of that centre were screened by a Screening Committee appointed by the Examination Committee. The Screeding Committee reported that answer to question no. In the circumstances, the answer books of that centre were screened by a Screening Committee appointed by the Examination Committee. The Screeding Committee reported that answer to question no. 1(numerical) of Science 1st paper of the petitioner tallied with the answer of the candidate bearing roll no. 234072 with common mistakes. The Examinations Committee (in respect of the use of unfair means in Science 1st paper) after considering the internal evidence contained in the answer books, the explanation of the petitioner and the report of the Inquiry Sub-Committee, resolved to cancel the petitioner's examination for the year 1971. Decision of the Examinations Committee, in respect of the use of unfair means by the petitioner in Science 1st paper, was duly approved by the Chairman of the Board and was forwarded to the Head of the institution vide letter dated 1st of January 1972 for being communicated to the petitioner. The head of the institution then communicated the decision to the petitioner by his letter dated 28-1-1972. 4. The petitioner was further charged for using unfair means while answering English 2nd paper. It was alleged that on 23-4-1971 when the petitioner was appearing in English 2nd paper one of the invigilators found a printed paper near his desk. He reported the matter to the Centre Superintendent. The Centre Superintendent obtained written report of the Invigilator and asked the petitioner to give his explanation. In his explanation the petitioner admitted that the Parcha was found near his desk, but he did not know how it happened to be there. The Deputy Head Examiner in English second paper reported that the petitioner had copied all the three sentences of question no. 2, from the unauthorised material. Accordingly, a charge-sheet approved by the Examinations Committee was issued to the petitioner asking him to explain why action should not be taken against him under paragraph 2(1) of Chapter 6 of the Regulations framed under the Intermediate Education Act. The petitioner submitted his explanation. The Examinations Committee, after considering the report and the explanation given by the petitioner, came to the conclusion that the petitioner was guilty of the charge levelled against him and his examination for the year 1971 be cancelled and he be debarred, from appearing in the Board's Examination for the year 1972. 5. The petitioner submitted his explanation. The Examinations Committee, after considering the report and the explanation given by the petitioner, came to the conclusion that the petitioner was guilty of the charge levelled against him and his examination for the year 1971 be cancelled and he be debarred, from appearing in the Board's Examination for the year 1972. 5. The case of the Board, accordingly, is that two different charges, in respect of different uses of unfair means by the petitioner, in different, papers were levelled against him. The two charge-sheets were separately enquired into and the petitioner was found guilty and punished separately in respect of the allegations contained in each of them on different occasions. In the circumstances, no question of the Board reviewing any order passed by it arises. 6. In the rejoinder affidavit tiled on behalf of the petitioner the allegation that the petitioner was charged for using unfair means in answering two different papers on two different `occasions' has not been controverted. It is asserted that there was absolutely no material on the record before the Board which could indicate that the petitioner was either responsible for bringing unauthorised material while answering English second paper and using the same or for using any unfair means in the science 1st paper. 7. At the very outset it may be pointed out that in his petition filed before this Court, the petitioner has suppressed material facts. The petition as drafted gives an impression that the petitioner was accused of using unfair means in answering English second paper and that only one enquiry was held against him. Facts as disclosed in the counter-affidavit revealed that two different accusations in respect of two different question papers were made against the petitioner. He must have been aware of both the proceedings and there is no reason why he did not candidly disclose this in the petition filed by him. In my opinion this act of the petitioner, by itself, is sufficient to disentitle him to a relief under Art. 226 of the Constitution. However, considering that the petitioner is a young student of immature age and as the impugned orders art likely to affect his career I proceed to consider the various points raised on his behalf. 8. In my opinion this act of the petitioner, by itself, is sufficient to disentitle him to a relief under Art. 226 of the Constitution. However, considering that the petitioner is a young student of immature age and as the impugned orders art likely to affect his career I proceed to consider the various points raised on his behalf. 8. On the allegations made in the counter-affidavit, which are not controverted, it is clear that there were two independent enquiries in respect of different allegations of use of unfair means by. the petitioner. These two enquiries culminated in different orders communicated to the petitioner by letters dated 28-1-1972 and 18-3-1972. There is thus no force in petitioner's contention that the order communicated to the petitioner by letter dated 28-1-1972 has since been reviewed which could not be done by the Board. 9. Learned counsel for the petitioner then contended that in the circumstances of the case, the Board was not justified in punishing the petitioner twice for having used unfair means in the High School Examination for the year 1971. He contends that as the 1971 High School Examination was one examination and the Board could punish him for using unfair means in that examination only once, notwithstanding that the petitioner is found guilty of using unfair means in two different papers on different occasions. 10. Rule 2(i) of Chapter VI of the Regulations framed by the Board runs thus :- "to consider cases where examinees have concealed any fact or made a false statement in their application forms or a breach of rules or regulations to secure undue admission to an examination or used unfair means or committed fraud (including impersonation) at the examination or are guilty of a moral offence or indiscipline and to award penalty which may be one or more of the following: .... .... .... .... ...." In my opinion, if a candidate is alleged to have used unfair means in two different papers and on different occasions in an examination of the Board such allegations give rise to different cases regarding use of unfair means, as contemplated by the aforementioned regulation. There can be no objection to the Board proceeding to deal with such cases separately and to pass appropriate orders in each of them. There can be no objection to the Board proceeding to deal with such cases separately and to pass appropriate orders in each of them. In the very nature of things, the committee appointed to enquire into the allegations of use of unfair means in a particular subject has to be a committee of persons well acquainted with that subject and a single committee may not be in a position. to look into the use of unfair means in all the papers. It follows that normally different enquiries have to be held in respect of allegation of use of unfair means in different papers. Language used in Chapter VI, rule 2(1) does not preclude different inquirers and different punishments in respect of each such case, I am, therefore, of opinion that this ground raised on behalf of the petitioner has no substance. 11. I now proceed to consider the next argument raised on behalf of the petitioner viz. that there was absolutely no material on the record on the basis of which the Board could possibly have recorded a finding that the petitioner was guilty of having used unfair means in answering questions in Science first and English Second papers. 12. So far as the allegation about the use of unfair means in answering question no. 1, numerical of Science first paper is concerned, the counter-affidavit makes it clear that the only material relied upon by the contesting respondents in coming to the conclusion that the petitioner was guilty of using unfair means was that provided by a comparison of petitioner's answer book with that of the candidate bearing the roll number 234072. According to the respondent this comparison reveals that the working given by the petitioner tallied with the answer of the other candidates with mistakes. The answer book of the petitioner as well as that of the candidate bearing roll number 234072 have been placed before me. I find that the petitioner has worked out the answer correctly and there is no mistake in its working. Further, working of the question is fully supported by the rough working done by the petitioner at the back of the first cover page. I asked the learned Standing Counsel to point out the mistake committed by the petitioner in answering this question which tallied with the mistake committed by the candidate bearing roll no. 234072. Further, working of the question is fully supported by the rough working done by the petitioner at the back of the first cover page. I asked the learned Standing Counsel to point out the mistake committed by the petitioner in answering this question which tallied with the mistake committed by the candidate bearing roll no. 234072. He was unable to point out any such mistake. He also failed to point out any other material on the record on the basis of which the Examination Committee could come to a conclusion that the petitioner was guilty of using unfair means in answering that question. In the result I find that there was absolutely no material before the respondents on the basis of which any finding that the petitioner had used unfair means in answering question no. 1 of the Science first paper could be recorded. The decision of the Board concerning this paper was communicated by letter dated 1st January 1972 to the Principal, who communicated he same to the petitioner vide his letter dated January 24, 1972. This decision of the Board therefore, deserves to be quashed. 13. So far as the use of unfair means by the petitioner in answering a question in English second paper is concerned, it is alleged that while the petitioner was appearing in that paper on 23rd of April 1971 one of the invigilators found a printed paper near his desk. The recovery of the printed paper from near his desk was not denied by the petitioner. It was contended that the petitioner did not know how that paper reached there. The Board however concluded that the petitioner used that paper in answering one of the questions of English second paper and was therefore guilty of using unfair means in the examination. The printed paper said to have been recovered from near petitioner's desk as also his answer book have, been placed before me. A comparison of the two shows that the respondents were fully justified in coming to the conclusion that the petitioner had at tempted to use the paper in answering a question of English second paper. In the circumstances, it cannot be said that there was no material on the record to support the conclusion arrived at by the Board. A comparison of the two shows that the respondents were fully justified in coming to the conclusion that the petitioner had at tempted to use the paper in answering a question of English second paper. In the circumstances, it cannot be said that there was no material on the record to support the conclusion arrived at by the Board. The order of the Board, communicated to the petitioner by letter dated 18th March 1972 cancelling his examination for the year 1971 and debarring from appearing in its examination in the year 1972, in respect of use of unfair means in English second paper, therefore, cannot be interfered with. 14. The petition succeeds in part. Decision of the Board as communicated to the petitioner by the head of the Institution by his letter dated January 28, 1972 in respect of use of unfair means by him in answering one of the questions in English Second paper is maintained. The parties are directed to bear their own costs. Tile stay order dated March 24, 1972 is vacated.