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2008 DIGILAW 4274 (MAD)

N. Namitha v. Pondicherry University & Others

2008-11-19

R.BANUMATHI

body2008
Judgment : Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records relating to the impugned orders in PV/CE/E5/MBBS/MP/2007, dated 30.5.2007 issued by the II Respondent and quash the same. Petitioner seeks Writ of Certiorari to quash the order PV/CE/E5/MBBS/MP/2007 dated 30.5.2007 passed by the II Respondent. 2. Brief facts which led to the filing of Writ Petition are as follows:- (i) Petitioner was selected for MBBS Degree course in the Management quota of Mahatma Gandhi Medical College and Research Institute, Puducherry in 2002 and her Roll number is 901047. Petitioner attended I Year examination in December 2002 and passed all the subjects in 2004. Petitioner attended the II Year MBBS course in June 2004 and the second Year course consists of 7 papers and Petitioner has to sit for the written and practical examination for the 7 subjects in May 2006. (ii) In May 2006, written examination for the II Year MBBS course was arranged at Pondicherry Engineering College at Kalapet. During the examination held in May 2006 there was manipulation of marks in the answer scripts to favour and benefit the Petitioner. There was manipulation while entering the marks in the individual mark sheets. (iii) In order to scrutinize the malpractice, a Committee was constituted to conduct an enquiry and 5th Respondent conducted enquiry. On 111. 2006, Disciplinary Committee gave a report recommending punishment to cancel all the University examinations registered by the Petitioner in the Session May 2006. Accordingly, University examinations registered by the Petitioner in May 2006 was cancelled. (iv) Again Petitioner had to appear for the II Year MBBS examination in May 2007 and the examination took place in the Campus of Pondicherry University and Petitioner wrote all the 7 papers in May 2007. During the conduct of II Year MBBS examination, once again malpractice was committed by the Petitioner and other 4 persons. Disciplinary committee consisting of 6 members conducted enquiry and Disciplinary committee submitted its report to the University and University found the Petitioner guilty and decided that the examination taken by the Petitioner during May 2007 session be cancelled and Petitioner be debarred for the next examination in November 2007 by order dated 30.5.2007. Challenging the impugned order, Petitioner has filed the Writ Petition. 3. Challenging the impugned order, Petitioner has filed the Writ Petition. 3. Opposing the Writ Petition, Respondents 1 and 2 have filed counter stating that Petitioner was found indulging in the malpractice in the examination in May 2007 and that she was debarred as per the regulations of University by the Disciplinary Committee. According to the Respondents, Petitioner has admitted her guilt. The Disciplinary Committee decided that the examination taken by the Petitioner during May 2007 to be cancelled and the Petitioner can be debarred for the next examination and that Petitioner can write the examination in May 2008. It is further averred that Petitioners examination track record and conduct is tainted and that she is not entitled to seek the remedy invoking equitable jurisdiction under Art. 226 of Constitution of India. 4. On behalf of the Writ Petitioner, Mr. C.Selvaraj, learned Senior Counsel has submitted that onus upon the Respondents to prove that Petitioner had copied by getting answers through SMS. Learned Senior counsel further submitted that there is nothing to show that any message was received. Insofar as, the letter given by the Petitioner, learned Senior Counsel would submit that Petitioner had given the statement under pressure from the authorities. 5. Drawing Courts attention to the file and other proceedings, Ms. Bharathy, learned counsel for the Respondents contended that Petitioner has committed grave misconduct for the second time by getting answers through SMS. The Disciplinary Committee rightly cancelled the examination held in May 2007. Learned counsel for the Respondents would further submit that inspite of opportunities given to the Petitioner to take up the examination in May 2008, Petitioner has not chosen to take up the examination. Learned counsel for the Respondents further submitted that as per MCI regulations without completing the II Year examination, Petitioner cannot go for III Year examination. 6. Petitioner joined MBBS course in 2001-2002. Petitioner repeatedly taking up II Year examinations. The circumstances for repeatedly taking up the II Year examination are relevant to be noted. During the examination held in May 2006, there was manipulation of marks in the answer scripts. Manipulation was also noticed in entering the marks in the individual mark sheets. Disciplinary Committee constituted to conduct a detailed enquiry found malpractice in the papers of 10 candidates including the Petitioner. During the examination held in May 2006, there was manipulation of marks in the answer scripts. Manipulation was also noticed in entering the marks in the individual mark sheets. Disciplinary Committee constituted to conduct a detailed enquiry found malpractice in the papers of 10 candidates including the Petitioner. It was noticed that the marks of the Petitioners dummy number in 915 in Pathology – I paper has been tampered as 14 instead of 4. In another paper of Pathology – II paper of the Petitioners dummy number 915 has been interchanged as 913 and the marks belonging to the dummy number 913 have been awarded to dummy number 915. Further, while entering the marks in the individual mark sheet from the answer script, it has been interchanged as 18 instead of 8. In Pathology – IIA mark was changed to 10 ½ instead of 1½ in the mark list. 7. As per the recommendation of the Committee, relevant documents were handed over to Forensic Sciences Dept., Chennai for investigation. Pursuant to the report of Forensic Sciences Dept. dated 20.1.2006, disciplinary action was initiated. The Disciplinary Committee was constituted to conduct enquiry of 11 students who had indulged in the malpractice. Sufficient opportunity was given to the Petitioner to defend her case. On perusing the relevant documents relating to manipulation of papers, Disciplinary Committee gave a report on 111. 2006 recommending punishment to cancel all the University examination registered by the Petitioner in the Session May 2006. 8. Petitioner taken up the II Year MBBS examination in May 2007. Once again, malpractice was committed by the students including the Petitioner. It is stated that Petitioner had used her Cellphone bearing No.9894888974 and also involving other 4 students viz., 1) B.Sathish, Arupadai Veedu Colledge, III Year MBBS (Regn. No.246275080); 2) Thanikachalam, Arupadai Veedu Colledge, II Year MBBS (Regn. No.246275092); 3) Rizwan, (Cellphone No.9840089682) Mahatma Gandhi Medical College, III Year MBBS, (Regn. No.236375068); 4) P.Varun Prasath, II Year MBBS, (Regn. No.246275094) who were sending messages to the Petitioner during May 2007 examination. They were caught with their Cellphones and with a text book "Essentials of Medical Pharmacology" (K.D. Tripathi New Delhi). Rizwan in his letter dated 5. 2007 has stated that Sathish and Thanikachalam received the questions from the Cellphone of Petitioner and sent answers to Varun Prasath through their Cellphones. Thanikachalam in his letter dated 5. They were caught with their Cellphones and with a text book "Essentials of Medical Pharmacology" (K.D. Tripathi New Delhi). Rizwan in his letter dated 5. 2007 has stated that Sathish and Thanikachalam received the questions from the Cellphone of Petitioner and sent answers to Varun Prasath through their Cellphones. Thanikachalam in his letter dated 5. 2007 has admitted that they were sending answers to Varun Prasath. 9. On being interrogated, Petitioner admitted that she sent the questions from the examination hall to Rizwan and the Petitioner has admitted her guilt of using the Cellphone in her letter dated 5. 2007. She has handed over her Cellphone 9894888974 on 15. 2007. 10. Disciplinary Committee consisting of six members was constituted and notice was issued by the Disciplinary Committee and the Petitioner was afforded opportunity to put forth her case. During enquiry, Petitioner accepted the mistake and requested to pardon her. After duly considering the report submitted by the Disciplinary Committee, University found the Petitioner guilty and decided that examination taken by her during May 2007 Session be cancelled and that she be debarred for the next examination in November 2007 and it was made clear that Petitioner can again write the examination in May 2008. But the Petitioner did not take up the examination in May 2008. .11. As pointed out earlier, on 5. 2007, Petitioner had given statement in her own handwriting admitting her guilt. In the said statement, Petitioner had clearly stated that she has sent questions to Rizwan through SMS and that she got the answers. Statement of the Petitioner reads as under:- ." I have used my Cellphone (9894888974) (Airtel) during the Exam. I am the person who sent the Questions through the SMS (To 9840089682) through Rizwan 2.15 from my Cell No.9894888974. I give the Mobile to Rizwans friend (Ameen) out side the Exam hall After exam. Surely I will not repeat it again this mistake. .... " .12. In his statement, Rizwan Ahamad had also admitted his guilt of indulging malpractice in sending answers through SMS. Statement of Rizwan Ahamad is as follows:- ."We got the question paper from exam hall through Namitha at 2.20 and we all Satish, Thanikachalam and myself discussed the answers by seeing the book and we sent the answers through the SMS to Varun Prasath of A.V.M.C. And his No. is 9894416430......" 13. Statement of Rizwan Ahamad is as follows:- ."We got the question paper from exam hall through Namitha at 2.20 and we all Satish, Thanikachalam and myself discussed the answers by seeing the book and we sent the answers through the SMS to Varun Prasath of A.V.M.C. And his No. is 9894416430......" 13. By the letter written by the Petitioner in her own handwriting dated 15. 2007, Petitioner has handed over the Cellphone 9894888974 which was used during the examination. Based on the statements and other materials, Disciplinary Committee held that Petitioner had committed malpractice during the examination. After considering the report by the Disciplinary Committee, University has passed an order that examination taken by the Petitioner during May 2007 Session be cancelled and debarring her for the next examination Session November 2007. However, University had observed that Petitioner can write examination in May 2008. .14. Producing the statement of Calls received, issued by Airtel Limited for the period from 05. 2007 to 11.05.2007, learned Senior Counsel for the Writ Petitioner has contended that there is absolutely nothing to show that Petitioner received any SMS from the Cellphone (9840089682) of Rizwan. Learned Senior Counsel for the Petitioner contended that Petitioner was victimised and that she was compelled to give such a statement before the authorities admitting her guilt. Statement showing the details of calls received and sent cannot be said to be exhaustive one containing the calls received and also messages. When Petitioner herself has admitted having used the Cellphone 9894888974 during the examination by sending questions through SMS to Rizwan Cellphone 9840089682, it is futile to contend that there was no SMS entry in the statement showing the details of calls statement produced by the Writ Petitioner. Statement produced by the Petitioner only shows details of calls received and do not contain particulars regarding SMS. 15. The impugned order cancelling the examination taken up by her during May 2007 Session was passed on 30.5.2007. As rightly pointed out by the learned counsel for the Respondents, Petitioner has not immediately challenged that order. She has filed the Writ Petition only on 111. 2007 and only thereafter, Petitioner has preferred an appeal on 012. 2007. 16. Based upon the statement recorded from the Petitioner and Rizwan Ahamad and other materials, Disciplinary Committee held that Petitioner is guilty of malpractices during the examination. She has filed the Writ Petition only on 111. 2007 and only thereafter, Petitioner has preferred an appeal on 012. 2007. 16. Based upon the statement recorded from the Petitioner and Rizwan Ahamad and other materials, Disciplinary Committee held that Petitioner is guilty of malpractices during the examination. The finding of the Disciplinary Committee cannot be said to be perverse or erroneous. 17. In an attempt to get rid of the charges, Petitioner had gone to the extent of making allegation against the 4th Respondent-Section Officer of Pondicherry University and 5th Respondent – Controller of Examinations, Pondichery University. Both of them have filed separate counter denying the averments. As such, I do not find any substance in the allegation levelled against the 4th and 5th Respondents. .18. Observing that if an expert body comes to a conclusion as to the fact, the same should not be ordinarily interfered by a Court of law, in (2003) 9 SCC 237 [Union Public Service Commission v. Jagannatha Mishra], the Honble Supreme Court has held as under:- ."4. ..... It cannot be held as a principle that wherever there is no report from the invigilator indicating adoption of malpractice in any examination the appropriate authority cannot come to the conclusion about the adoption of malpractice. It would always be a case depending upon the materials produced and there would be no bar for an expert body to come to a definite conclusion about adoption of malpractice in an examination even in the absence of a report of the invigilator to that effect. It would always be a question of fact to be decided on the basis of materials produced before the expert body." 119. High Court exercising power under Article 226 of the Constitution cannot act as a Court of Appeal, but is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. The error of law which is apparent on the face of the record can be corrected by a Writ. In regard to the findings of fact recorded by the Disciplinary Committee can interfere if it is shown that violation of principles of natural justice or that the finding are based on no evidence. The error of law which is apparent on the face of the record can be corrected by a Writ. In regard to the findings of fact recorded by the Disciplinary Committee can interfere if it is shown that violation of principles of natural justice or that the finding are based on no evidence. Based upon the materials when Disciplinary Committee has arrived at the conclusion that Petitioner and 5 others have committed malpractice during the examination, the High Court will not interfere in such a findings of fact. 120. After completing the course, qualified MBBS is concerned with Health and life of people at large. Quality of education cannot be compromised by taking lenient view on an unfair methods adopted to get through the examination. 121. Observing that in matters of enforcement of discipline during examinations, Court must be slow in interference, in 1993 (Supp) SCC 82 [Controller of Examinations and others v. G.S.Sunder and another], the Honble Supreme Court has held as under:- " 10. We have given our careful consideration to the above submissions. One thing must be put beyond doubt, in matters of enforcement of discipline this Court must be very slow in interference. After all, the authorities in charge of education whose duty it is to conduct examinations fairly and properly know best how to deal with situations of this character. One cannot import fine principles of law and weigh the same in golden scales. In the present system of education, the system of examinations is the best suited to assess the progress of the student so long as they are fairly conducted. Interference by court in every case may lead to unhappy results making the system of examination a farce. ...." Finally, the Supreme Court concluded as under:- "11. When the matter is approached from the above point of view, we find, as rightly submitted by the learned Attorney General it is a systematic case of fraud committed by the first respondent. It cannot be a sheer coincidence that in all the semesters, namely, Semesters III to VI the first respondent secured good marks and the other student K.R.Gandhi failed. There is nothing unbelievable in the first respondent admitting his mistake and giving a statement to this effect. We also find that there is no question of violation of principles of natural justice. There is nothing unbelievable in the first respondent admitting his mistake and giving a statement to this effect. We also find that there is no question of violation of principles of natural justice. The first respondent knew the charge fully and he had admitted his guilt. That is why we are constrained to point out the technicalities of law should not be imported to further the cause of a student who had indulged in malpractice. Even if others are in complicity with the perpetration of fraud that does not mean the first respondent is absolved of his guilt. Thus, we are unable to agree with the findings of the High Court which are hereby set aside." The above decision of the Supreme Court makes it clear that in matters of enforcement of discipline, particularly in the affairs of education, the Court must be very slow in interference. 22. In an identical case in 2006 (2) LW 690 [Controller of Examinations, Bharathidasan University etc. v. B.Vignesh ], malpractice committed during examination came up for consideration before Division Bench. In the said decision, the learned single Judge has interfered with the order passed by the University. Referring to the decisions in G.S.Sunders case [1993 Supp (3) SCC 82] and Ram Preeti Yadavs case [ (2003) 8 SCC 311 ], the Division Bench of this Court held that candidates were given adequate opportunity to put forth their stand and that University was justified in drawing the inference of complicity of the Writ Petitioner in tampering the records in their favour. Observing that the learned single Judge ought not to have interfered with the decision of the University in debarring the candidates, the Division Bench has set aside the order of the learned single Judge. The decisions of the Honble Supreme Court and Division Bench of this Court are squarely applicable to the case on hand. 23. When the matter was heard on 111. 2008, Court has asked whether Petitioner is willing to take up the II Year examination scheduled on 111. 2008. Petitioner was present in the Court and insisting to permit her to write simultaneously both II and III Year examinations. 24. M.P.No.2/2008:- Petitioner has filed this Application to permit her to take III Year MBBS examination which is due to commence from 111. 2008. 2008. Petitioner was present in the Court and insisting to permit her to write simultaneously both II and III Year examinations. 24. M.P.No.2/2008:- Petitioner has filed this Application to permit her to take III Year MBBS examination which is due to commence from 111. 2008. As per MCI regulations, a student who fails in the second Professional examination, shall not be allowed to appear in the third Professional Part I examination unless he or she passes all subjects of second Professional examination. Petitioner was given opportunity to take up II Year examination in May 2008. But the Petitioner has not availed the opportunity of appearing of II Year examination and getting through all subjects of II Year examination. To permit the Petitioner to appear for III Year examination would be in clear violation of MCI regulations and the same cannot be allowed. 25. W.P.No.34999/2007 : - In the result, the Writ Petition is dismissed. 26. M.P.No2/2008 in W.P.No.34999/2007:-In the result, the Petition is dismissed. However, it is open to the Petitioner to take up II Year examination in May 2009.