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Allahabad High Court · body

1985 DIGILAW 431 (ALL)

Atul Goel v. Registrar, University of Gorakhpur

1985-04-12

I.P.SINGH, O.P.SAXENA

body1985
JUDGMENT O.P. Saxena, J. - By this petition under Article 226 of the Constitution the petitioner has prayed for a writ of certiorari quashing the order cancelling the petitioner's result for B.Sc. Part II Examination 1984 and a writ of mandamus directing the opposite parties to declare the result. 2. The facts giving rise to this petition are that the petitioner appeared in B.Sc. Part II Examination, 1984 of the Gorakhpur University as a regular student of Shiv Harsh Kishan Post-Graduate College, Basti. Respondent No. 3 Dr. P. L. Shukla was the Principal of the College. On 23rd April 1984, the petitioner appeared in Chemistry paper. On 25th April 1984, the appeared in Chemistry II Paper. On 25-4-84 while he was busy in answering the question paper the invigilators accompanied by the Principal of the Institution picked up a wooden scale from somewhere and claimed to have recovered it from near the petitioner's seat. There was some scribling on the scale. An attempt was made to implicate the petitioner for using unfair means. The petitioner informed these persons that he had too connection with the scale or with the scribling thereon. The petitioner appeared at the All India Competitive Examination for taking admission to the technical course of Harcourt Butler Technological Institute. Kanpur. He secured first position in Food Technology and was selected for admission to the 3 year B.Tech. course. The petitioner's admission to the Harcourt Butler Technological Institute, Kanpur was only provisional and it was liable to he cancelled in case he could not produce the mark-sheet of having passed the B.Sc. examination. The petitioner filed a writ petition No. 12180 of 1984 in which an interim order was passed on 8th October 1984 vide copy Annexure 1. Two show cause notices were issued to the petitioner vide Annexures 2 and 3. Annexure 2 related to the use of unfair means in Chemistry paper in which the petitioner appeared on 23-4-84. Annexure 3 related to the recovery of the unauthorised material from the possession of the petitioner while he was appearing in Chemistry II Paper on 25-4-84. The petitioner sent replies to these notices vide Annexures 4 and 5. On 29th October 1984, the petitioner appeared before the Examination Committee and made his submissions. The petitioner's result was cancelled vide Annexure 7 dated 30th October 1984. The Committee took the decision on the charge regarding Chemistry II paper. The petitioner sent replies to these notices vide Annexures 4 and 5. On 29th October 1984, the petitioner appeared before the Examination Committee and made his submissions. The petitioner's result was cancelled vide Annexure 7 dated 30th October 1984. The Committee took the decision on the charge regarding Chemistry II paper. As far as the charge regarding Chemistry Paper is concerned, it merely stated that its earlier decision might be referred to. The counter-affidavit filed in writ petition No. 12180 of 1984 showed that the impugned order cancelling the petitioner's result is based on the misreading of the report of Head Examiner who did not report that the material recovered related to Chemistry II Paper. The first writ petition having become infructuous, the petitioner filed the present petition. 3. The petitioner filed the petition with the allegations that the unauthorised material was not recovered from his possession, that the petitioner was not supplied a copy of the report of Head Examiner, that he had been falsely implicated due to mala-fides of respondent No. 3, the Principal who bore grudge against his father, that he was not given adequate opportunity to defend himself, that the impugned order is based on no material, that the Committee did not apply its mind to the matter and that the impugned order is ex facie illegal and liable to be quashed. 4. The petition was contested by respondents Nos. 1 and 2 and respondent No. 3 separately. Respondents Nos. 1 and 2 contended that the unauthorised material was recovered from the possession of the petitioner, that the material was sent to the Head Examiner, that the Head Examiner reported that the material related to Chemistry II Paper, that the Committee consisted of senior teachers of the Chemistry Department of Gorakhpur University, that the petitioner submitted a detailed reply to the charges and also appeared before the Committee, that the Committee considered the answer hook of the petitioner, the unauthorised material recovered from his possession. the report of the Centre Superintendent, the report of the Head Examiner, the written reply of the petitioner, the oral submissions made by him and other relevant documents, that it was after proper consideration of the matter that the impugned order was passed and that the petitioner had an alternative remedy by way of reference to the Chancellor under S. 68 of the U.P. State Universities Act. 5. 5. Respondent No. 3 denied the allegations of mala fide against him and contended that the unauthorised material was in fact recovered from the possession of the petitioner. 6. We have heard the learned counsel for the parties. 7. The petitioner was selected for admission to B.Tech. course of Harcourt Butler Technological Institute, Kanpur and his provisional admission was subject to his production of a certificate of having passed B.Sc. Examination. The rule regarding exhaustion of statutory remedies before a writ may be granted is a rule of policy, convenience and discretion rather than rule of law U.P. State v. Mohammad Nooh, AIR 1958 SC 86 . It does not oust the jurisdiction of the High Court, but it is only one of the circumstances that the Court should take into consideration in exercising its discretionary jurisdiction (M.G. Abrol v. Shanti Lal Chotelal, AIR 1966 SC 197 ). A representation to the Chancellor under S. 68 of the U.P. State Universities Act is not a speedy remedy and cannot be considered an efficacious remedy. There was a reasonable apprehension of petitioner's admission being cancelled on his non- production of the certificate. In the circumstances we are unable to accept that the writ of certiorari should be refused as the petitioner failed to take recourse to a representation under S. 68 of the U.P. State Universities Act. 8. Annexure I to the supplementary affidavit filed on behalf of respondents Nos. 1 and 2 on 21-3-85 is the copy of the order passed by the Committee and it runs as below : "Pariksha Samiti Ke Sankalp Sankhia-4 Dinank 9-7-82 Ke Spashtikaran Sankhia 2 Ke Anusar 1984 Ki Pariksha Nirast Ke Jaye". 9. Annexure 2 to the supplementary affidavit is the copy of Resolution No. 4 dated 14th July 1982 passed by the Committee. Rule 7 relates to recovery of unauthorised material from a candidate appearing in the examination. If unauthorised material is used in the examination, the punishment provided is cancellation of examination and debarring for two years. If the unauthorised material is not used, the punishment provided is cancellation of examination. Explanation 2 provides that if the unauthorised material relates to the syllabus of the question paper, it will be deemed to be related to the question paper irrespective of the fact that the unauthorised material might be pertinent or otherwise to any question in the paper. 10. Explanation 2 provides that if the unauthorised material relates to the syllabus of the question paper, it will be deemed to be related to the question paper irrespective of the fact that the unauthorised material might be pertinent or otherwise to any question in the paper. 10. In this case the unauthorised material was a piece of wooden scale with some writing on it. It was not recovered from the petitioner's copy or table or person. It is said to have been found lying near his table. It is not known as to what was the position of the unauthorised material vis-a-vis the petitioner's table. There is nothing to show as to at how much distance from the table, the material was found lying. The possibility that the unauthorised material was recovered near the table of any of the other candidates sitting nearby cannot he ruled out. There is no evidence to show that the writing on the wooden scale was similar to the petitioner's handwriting. The Head Examiner could only report that the writing on the unauthorised material pertained to the syllabus of Chemistry II paper. The Committee had to record a finding on the following points : (1) That the unauthorised material was recovered from the possession of the petitioner and the case was covered by Rule 7 of Resolution No. 4 dated 9th July. 1982. (2) That the unauthorised material pertained to the syllabus of question paper of Chemistry 11 Paper as provided in Explanation 2 to Rule 7. 11. In the brief and cryptic order, there is reference to Explanation 2. There is no reference to Rule 7. There is no Explanation 2 as such except Explanation 2 Rule 7. The Committee was rather casual even in referring to the provision under which the petitioner's result was cancelled. The Committee gave no reasons. It did not record any finding. 12. Reasons are like links between the materials on which certain conclusions are based and the actual conclusions. They disclose as to how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should serve a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions of decisions recorded be shown to be manifestly unjust and unreasonable Union of India v. M.L. Capoor., AIR 1974 SC 87 at p. 98). 13. They should serve a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions of decisions recorded be shown to be manifestly unjust and unreasonable Union of India v. M.L. Capoor., AIR 1974 SC 87 at p. 98). 13. In the absence of any specific finding against the petitioner, the cancellation of his examination is violative of principles of natural justice and is liable to be quashed. 14. In Mohan Sharma v. University of Lucknow, 1982 All LJ 55, a Division Bench of this Court held at p. 58 : "The petitioner flatly refused that the document in question was found in his possession. The Unfair Means Sub-Committee did not find that the petitioner was actually in possession of the document in question. The charges levelled were not at all established. There was no proof either of it. No material has been placed before us to show that anybody stated before the Sub-Committee that the petitioner was found in possession of the incriminating document. The only finding is that the material in question was relevant to the syllabus but had not been used by the candidate. That being the position, we are of the opinion that the impugned order of punishment is violative of the principles of natural justice. It is also not supportable by any evidence or any provision of law, neither by the provisions of S. 29 of the Act nor the Ordinances in question. It, therefore, deserves to be quashed." 15. In Pradeep Singh Chauhan v. University of Lucknow, 1983 UPLBEC 534 at p. 537 : AIR 1983 All 427 at p. 429 a Division Bench of this Court held : "The Unfair Means Sub-Committee should have recorded a finding with respect to the charges levelled against the petitioner and if that is not done the order of the Unfair Means Sub-Committee would be bad in law and un-sustainable. It seems that the Unfair Means Sub-Committee uses a cyclostyled form while dealing with matters pertaining to unfair means in the Examination. Even in that form there is space left for recording a finding but in the instant case that space in the form had remained blank." 16. In view of the above, we are of the opinion that the impugned order is bad in law and is liable to be quashed. 17. Even in that form there is space left for recording a finding but in the instant case that space in the form had remained blank." 16. In view of the above, we are of the opinion that the impugned order is bad in law and is liable to be quashed. 17. We allow the petition and quash the order dated 30th October 1984 (Annexure 7) cancelling the petitioner's Examination for B.Sc. Part II 1984. We direct the respondents to declare the petitioner's result and give him a copy of the mark-sheet within two weeks of the service of the copy of this order. 18. A copy of the order will be issued to the petitioner on payment of usual charges within 48 hours.