Jyoti Prakash Pandey v. University of Allahabad — 1996 DIGILAW 502 (ALL)

Judgment : D. K. Seth, J. 1. A notice to show cause was issued by the respondent University to the petitioner on 9th October, 1995 (Annexure I to the writ petition) alleging that "hand-written small paper" was found in possession of the petitioner. The petitioner submitted a specific reply alongwith the report of the Superintendent of the Examination Centre categorically denying that unauthorised material was found in his possession. By order dated 7th February, 1996, the petitioner's result of B.Sc. Part I Examination for the year 1995 was cancelled on the ground that a hand-written chit was found in the Answer Book of the petitioner though the same was not used in answering any of the question. The said order dated 7th February, 1996 has been challenged by means of the present writ petition. 2. MR. Arun Tandon, learned counsel for the petitioner, refers to relevant provisions of the Allahabad University Ordinance in support of his contention and contended that the chit alleged to have been found in the answer script cannot be said to be a possession of unauthorised material nor the petitioner may be termed as a candidate found in possession for the purpose of adopting unfair means by the petitioner. Inasmuch as according to him, finding of chit in the answer book at a much later date outside the Examination Hall does not come within the ambit of the specific provision of Chapter XXVIII of the University Ordinances particularly in view of the definition contained in Clauses 1.2 (A), (B) and (D) and Clause 1.3. Therefore, the order impugned cannot be sustained. He also challenges the show cause notice on the ground that it has not disclosed any fact on account of which the petitioner was unable to give appropriate reply and defend his cause. Mr. P. S. Baghel, on the other hand, contends that finding of chit in the answer script means that the chit was in possession of the petitioner in the Examination Hall and was kept in the answer book though may not have been used. Therefore, the same comes within the definition of 'unfair means' and possession of unauthorised material. According to him, therefore, during the examination, the petitioner was in possession of unauthorised material though not detected in the Examination Hall for which Clause (D) could not be complied with. Therefore, the same comes within the definition of 'unfair means' and possession of unauthorised material. According to him, therefore, during the examination, the petitioner was in possession of unauthorised material though not detected in the Examination Hall for which Clause (D) could not be complied with. Even if, according to him, Clause (D) is not complied with, the same could not be attracted on account of non-detection, even then it cannot be said that the chit does not come within the description of possession of unauthorised material. According to him, if it comes within the meaning of possession of unauthorised material, then it would, by necessary implication, mean the petitioner a candidate in possession of unauthorised material found at the time of the examination of the answer script. Simply because the petitioner could not be detected, the responsibility cannot be avoided by the petitioner. 3. AFTER hearing lengthy arguments advanced by the respective counsel relying on various provisions of law as well as decisions, in order to appreciate the situation, it is necessary to refer to the relevant provisions of law governing the subject particularly Chapter XXVIII of the Allahabad University Ordinance. So far as the quantum of punishment is concerned, the same is not disputed. The dispute is with regard to the finding of guilt of the petitioner in the facts and circumstances of the case in view of the relevant provisions with regard to which counter arguments have been advanced by the learned counsel for the parties against each other. 4. CHAPTER XXVIII of the said Ordinances which deals with use of unfair means is quoted below so far as it is relevant for our present purpose : "Ordinances on the use of unfair means and causing disturbances in examination 1. Unfair means. 1.1. Candidates found using or attempting, aiding, abetting or instigate to use unfair means at the examinations of University of Allahabad shall be punished. 1.2. Definitions. Unfair means. 1.1. Candidates found using or attempting, aiding, abetting or instigate to use unfair means at the examinations of University of Allahabad shall be punished. 1.2. Definitions. (A) Unfair means.-A candidate shall be deemed to have used "unfair means" if the candidate is in possession of unauthorised material or if he has transcribed any part or the whole of the unauthorised material or if he intimidates or threatens or man-handles or uses violence against any invigilator or person on duty in the examination or if he leaves the examination hall without surrendering his examination script to an invigilator or if he is found communicating with other examinees or any one else inside or outside the examination hall. (B) Possession of unauthorised material.-"Possession of unauthorised material" by a candidate shall mean having any unauthorised material on his person or desk or chair or at any place within reach in the examination hall and its environs or having such material on him in the urinal ; toilet or the passage thereto or therefrom at any time from the commencement of the examination till its end. (C) Unauthorised material.-"Unauthorised material" shall mean any material whatsoever, related to the subject of the examination, printed, typed, written or otherwise, on paper, cloth, wood or other material, in any language or in the form of a chart, diagram, map or drawing. (D) A candidate found in possession.-"A candidate found in possession" shall mean a candidate reported in writing as having been found in possession of unauthorised material by the Invigilator or Head Invigilator or by a teacher or official authorised in this behalf even if the unauthorised material is not produced as evidence because of its being reported as swallowed or otherwise destroyed or snatched away or otherwise taken away by the candidate or by any other person acting on his behalf provided that such report is submitted to the Registrar, Allahabad University, or an officer deputed for the purpose on his behalf within three hours or the end of the examination concerned after authentication by the Head Invigilator concerned (alongwith the unauthorised material found, if available as evidence). (E) Material related to the subject of the examination.-"Material related to the subject of the examination" shall if the material is produced as evidence, mean any material certified as related to the subject of the examination by a teacher of the subject. (E) Material related to the subject of the examination.-"Material related to the subject of the examination" shall if the material is produced as evidence, mean any material certified as related to the subject of the examination by a teacher of the subject. If the material is not produced as evidence for any of the reasons referred to in (D) above, the presumption shall be that the material did relate to the subject of the examination. 1.3 A candidate found using unfair means in an examination shall be served with a notice therefor in the examination hall itself and, if he refused to accept or avoids or escapes personal receipt of such notice, such notice shall be sent to him by Registered Post within seven days of the incident. The candidate shall be required to submit his reply to the notice within 10 days of the issue of such notice. If no reply is received within this period, it would be presumed that the candidate has nothing to state in his defence." Possession of unauthorised material means having unauthorised material on his person or desk or chair or table or at any place within the reach in the Examination Hall at any time from the commencement of the examination till its end. It is not disputed that the chit is an unauthorised material within the meaning of the definition of unfair means quoted above. It is also not disputed that having the chit inside the answer script comes within the phrase "at any place within the reach in the Examination Hall" inasmuch as the answer script is within the reach of the candidate and naturally in the Examination Hall. At the same time, it also fulfills the condition "at any time from the commencement of the examination till its end" inasmuch as the answer script was in possession or custody of the petitioner during the period of examination and the chit was placed in the said answer script during the said period. The petitioner could not have placed the chit at any time from the said period because it was not alleged that the petitioner had not taken the answer books outside the Examination Hall from the said period. Since the chit is found, the necessary presumption is that the same was placed in the answer book by the petitioner. The petitioner could not have placed the chit at any time from the said period because it was not alleged that the petitioner had not taken the answer books outside the Examination Hall from the said period. Since the chit is found, the necessary presumption is that the same was placed in the answer book by the petitioner. It is very difficult to presume that the chit was placed in the said answer book by any person other than the petitioner. The examiner Dr. Upadhya was an examiner from outside. It cannot be said that the examiner had any enmity with the petitioner. 5. RELYING on the decision in the case of Pirzada Ahmad Salim Khan v. Vice Chancellor, Aligarh Muslim University, AIR 1982 All 76 , Mr. Baghel contended that there is nothing to establish that decision makers stood to gain or lose as a result of the decision. Therefore, there is a strong presumption of unbiased and honest decision. He contends further relying on the decision in the case of Controller of Examination v. G. S. Sunder, JT 1992 (4) SC 204, that unhealthy practice in the course of examination is poisonous in the field of education and must be rooted out so that the innocent and intelligent students are not affected. Similar view was taken in the case of Central Board of Secondary Education v. Miss Vinita Mahajan, JT 1993 (6) SC 165. He further contends that the Supreme Court in the case of State of Maharashtra v. Prabha, (1994) 2 SCC 481 , held that the Court should refuse to interfere in such matters as it shakes the confidence and faith of the society in the system and is prone to encouraging even to honest and sincere to deviate from their part. According to him, it is the responsibility of the High Court as custodian of Constitution to maintain the social circumstances by interfering where necessary for the sake of justice and refusing to interfere where it is against the social interest in public good. RELYING on the case of Bansi Narain Rai v. District Magistrate-cum-Dy. Director of Consolidation, 1995 ALJ 711, he further contends that the Court can refuse to interfere even if the impugned order is without jurisdiction provided substantial justice has been done by the impugned order. 6. RELYING on the case of Bansi Narain Rai v. District Magistrate-cum-Dy. Director of Consolidation, 1995 ALJ 711, he further contends that the Court can refuse to interfere even if the impugned order is without jurisdiction provided substantial justice has been done by the impugned order. 6. SO far as the principle as has been sought to be enunciated by relying on the decision cited above by Mr. Baghel, they are established principles of law and there cannot be any second opinion. Now we are posed with the question as to whether in the facts and circumstances of the present case, the petitioner would be termed as a candidate, found in possession of unauthorised material as provided in clause 1.2 (D) of Chapter XXVIII of the said Ordinance. The said definition provides that "a candidate found in possession" shall be a candidate reported in writing as having been found in possession of unauthorised material by the Invigilator or Head Invigilator or by a teacher or official authorised, even if the unauthorised material is not produced as evidence because of its being reported as swallowed or otherwise destroyed or snatched away or otherwise taken away by the candidate or by any other person acting on his behalf provided that such report is submitted to the Registrar within three hours or the end of the examination concerned after authentication by the Head Invigilator alongwith the unauthorised material found, if available as evidence. Therefore, in order to bring within the purview of the said clause, one or the other of the conditions are to be fulfilled and a candidate must have to come within any of the conditions mentioned above. Admittedly in the present case, none of the conditions have been said to be fulfilled. It is not a case that there was any report in writing that the petitioner was found to be in possession of unauthorised material by the Invigilator or by the persons mentioned or that the same was not available because of its destruction as indicated or that the said report was submitted to the Registrar within three hours of the examination. Since there was no report, therefore, there was no occasion for authentication. Therefore, it is a very difficult situation within which the petitioner could be brought in for the purpose of terming him to be a candidate found in possession. Since there was no report, therefore, there was no occasion for authentication. Therefore, it is a very difficult situation within which the petitioner could be brought in for the purpose of terming him to be a candidate found in possession. When specific provision has been made, we cannot stretch it beyond the limit as encompassed. To stretch the said definition to the extent Mr. Baghel wants us to do would be an exercise in which we ought to add or supply words to the said definition. It is by now established principle of law that while interpreting a statute, the Court cannot add or supplement any word to it when the meaning is clear and unambiguous. Admittedly, the definitions have been introduced in order to save it from arbitrary exercise or uncanalised exercise of the powers conferred. The guideline has been laid down only to safeguard arbitrary exercise of power. When the guidelines have been well defined, it is not permissible to interpret the said definition to include something which is very difficult to bring within the ambit of the said definition. 7. MR. Tandon relying on the decision in the case of Amit Kumar v. University of Allahabad, (1992) 1 UPLBEC 722 and Sundaram Srivastava v. Allahabad University, (1992) 1 UPLBEC 949, in support of his contention that Ordinance 1.3 is mandatory. Ordinance 1.3 provides that notice for using unfair means is to be served upon the candidate in the examination hall itself. If he refuses to accept or avoids or escapes personal receipt of the said notice, then the said notice shall be sent to him within 7 days of the incident. The candidates are required to submit reply to the notice within 10 days of the issue of the said notice. In the present case, it has not been alleged that the petitioner had refused to avoid or escape the receipt of the notice in the Examination Hall or that an attempt was made to serve the notice in the Examination Hall. It is also not the case that the notice was sent to him within 7 days of the incident. A plain reading of the said Ordinance 1.3 does not encompass within itself a situation like the present one. It is also not the case that the notice was sent to him within 7 days of the incident. A plain reading of the said Ordinance 1.3 does not encompass within itself a situation like the present one. The notice can be sent to the candidate by Registered Post, that too within 7 days of the incident only when the candidate has refused or avoided or escaped receipt of the notice. Reading Clause (D) and Ordinance 1.3 together, it implies that those provisions have been engrafted to prevent misuse or uncanalised use of power. The question is touchy and it is very difficult to have proper proof or evidence. In the statute, it is not permissible to travel beyond the scope of such statute. Relying on the Judgment in the case of Amit Kumar and Sundaram Srivastava (supra), it can safely be held that those provisions cannot be infracted. 8. THE present case does not come within the purview of the said Ordinance 1.3. Despite the principle which has been sought to be advanced by Mr. Baghel in the present facts and circumstances of the case, the finding of the chit in the answer script at much late date outside the Examination Hall cannot be brought within the purview of the said Ordinance, as indicated above. The chit found has been produced alongwith the answer script. Mr. Baghel very fairly conceded that the chit has been written by a hand very different than that of the petitioner as is apparent from his hand-writing appearing in the answer script. I have also examined the chit and compared the same with the answer script. I do not find any reason to disagree with the opinion of Mr. Baghel. Mr. Tandon argues that even if the submission of Mr. Baghel is accepted, in that event, it would amount to support a doubtful version that the petitioner is responsible for the insertion of the chit in the said answer book. But still then, this Court is not permitted to substitute its views with that of the person taking the decision. I am unable to agree with the said contention as advanced by Mr. Tandon. 9. But still then, this Court is not permitted to substitute its views with that of the person taking the decision. I am unable to agree with the said contention as advanced by Mr. Tandon. 9. BECAUSE of the reasons as observed earlier, by no means, while interpreting the provisions of the said Ordinance, the present facts and circumstances can be brought within the purview thereof and the petitioner cannot be said to be a candidate found in possession of unauthorised material as defined in Clauses (A), (B) and (D) of Ordinance 1.3. 10. IN that view of the matter, the order cancelling the result of the petitioner cannot be sustained and, as such, is quashed. The petitioner's result may be declared within a period of six weeks from the date a certified copy of this order is produced before the University. The above order is passed relying on the decision in the case of State of Maharashtra and others v. Prabha (supra) inasmuch as this is a case where the High Court is called upon to interfere for the ends of justice and not a case where the High Court should refuse to interfere in the interest of the public good. IN case it appears that the action taken is without jurisdiction and perverse, in that event it is very difficult to attract the principle laid down in the case of Pirzada Ahmad Salim Khan (supra) for holding that the decision making authorities were unbiased and honest or on the decision in the case of Controller of Examination v. G. S. Sunder (supra) to hold that though such practice may be unhealthy and are required to be rooted out like poisonous weeds, but still the same cannot be brought within the ambit of the ratio decided in the said case. Neither the ratio decided in the case of Bansi Narain Rai (supra) was attracted since it cannot be said that in the present case, substantial justice has been done by the impugned order though the same is without Jurisdiction inasmuch as in the present case the petitioner could not be brought within the purview of the definitions as contained IN Ordinance 1.2 or procedure as contained in Ordinance 1.3. Therefore, I am unable to accept the contention of Mr. Baghel. This writ petition thus stands allowed. There will, however, be no order as to costs. Therefore, I am unable to accept the contention of Mr. Baghel. This writ petition thus stands allowed. There will, however, be no order as to costs. Certified copy of this order may be issued on payment of usual charges within 7 days.