JUDGMENT Hon’ble Dilip Gupta, J.—The petitioner, who had taken admission in B.Ed. in the academic session 2004-05 in the Babu Ram Singh, Bhay Singh Memorial Degree College, Babralla, Badaun (hereinafter referred to as the ‘Institution’) which is affiliated to Mahatma Jyotiba Phooley Rohilkhand University, Bareilly (hereinafter referred to as the ‘University’), has filed this petition for quashing the order dated 28th January, 2009 passed by the University by which the B.Ed. Examination 2005 result has been cancelled for use of unfair means at the said Examination. 2. It is stated that the petitioner appeared at B.Ed. 2005 Examination as a regular student but the result of the petitioner was not declared. The petitioner appeared as an ex-student in the next B.Ed. 2006 Examination but as the marksheet was not issued to the petitioner, Writ Petition No. 38783 of 2007 was filed which was dismissed and the Special Appeal filed against the said judgment was also dismissed with the observation that the petitioner may apply for appearing at the 2005 improvement examination, since in the meantime the 2005 Examination result had been declared by the University. The petitioner appeared at the said improvement examination in paper No. 1, but the University cancelled the B.Ed. 2005 Examination result as the petitioner had resorted to use of unfair means in the improvement examination. 3. In the counter affidavit filed by the University, it has been stated that the B.Ed. 2005 Examination result of the petitioner was earlier not declared by the University since the petitioner had not mentioned the enrollment number. The petitioner appeared as an ex-student in the B.Ed. 2006 Examination by wrongly stating that she had failed at the B.Ed. 2005 Examination, whereas the result of the said examination 2005 Examination result had not been declared by the University and it is for this reason that the B.Ed. 2006 Examination result was not declared by the University. When the petitioner furnished the enrollment number, the University declared the B.Ed. 2005 Examination result but the petitioner submitted an application for appearing at the improvement examination. However, when the petitioner was appearing at the improvement examination in Paper I, a piece of printed paper on both sides was recovered from the possession of the petitioner by the Invigilator. When the petitioner furnished the enrollment number, the University declared the B.Ed. 2005 Examination result but the petitioner submitted an application for appearing at the improvement examination. However, when the petitioner was appearing at the improvement examination in Paper I, a piece of printed paper on both sides was recovered from the possession of the petitioner by the Invigilator. The Examiner reported that the unauthorised material that was recovered from the possession of the petitioner related to the subject paper, though the petitioner had not utilised the said material in answering the questions. In accordance with the Ordinances framed by the University for use of unfair means at the examination, the University cancelled the B.Ed. 2005 Examination result. 4. Sri D.K. Tiwari, learned counsel appearing for the petitioner submitted that when the Examiner had reported that the petitioner had not utilised the unauthorised material in answering paper No. 1 in the improvement examination, the University was not justified in imposing any punishment upon the petitioner for use of unfair means. He further submitted that in any view of the matter, the University could have at best cancelled the improvement examination result but could not have cancelled the entire B.Ed. 2005 Examination result. 5. Sri Vivek Verma, learned counsel appearing for the respondent-University, however, submitted that since the unauthorised material that was recovered from the possession of the petitioner related to the improvement examination subject, the petitioner was guilty of using unfair means at the examination and the University was justified in imposing the punishment. He further submitted that the improvement examination is part of the main examination and, therefore, use of unfair means at the improvement examination will result in the cancellation of the entire examination result by the University in terms of the Ordinances framed by the University. 6. I have carefully considered the submissions advanced by the learned counsel for the parties. 7. In the present case, the petitioner does not deny that the unauthorised material was recovered from her possession. Infact in the form, that is required to be filled up when a candidate is caught using unfair means, the petitioner stated that the chit was recovered from her desk and by mistake she had kept it though the petitioner also stated that the unauthorised material had not been utilised in answering the paper. Infact in the form, that is required to be filled up when a candidate is caught using unfair means, the petitioner stated that the chit was recovered from her desk and by mistake she had kept it though the petitioner also stated that the unauthorised material had not been utilised in answering the paper. According to the Ordinances framed by the University, if the unauthorised material relates to the question paper, then the examination result can be cancelled and if the candidate utilises the same, then in addition to cancellation of the examination, the candidate can also be debarred from appearing at the next examination. 8. Thus, though the petitioner may be justified in stating that the unauthorised material had not been used in answering the paper but mere possession of unauthorised material which relates to the subject paper is sufficient to hold the petitioner guilty of using unfair means at the examination. This is what has been held by the Supreme Court in Central Board of Secondary Education v. Vineeta Mahajan (Ms.) and another, (1994) 1 SCC 6 and the observations are : “..................The High Court reasoning, that the candidate having not used the material in spite of the opportunity available to her the possession alone would not attract the provisions of the Rule, in our view, is not borne out from the plain language of the Rule. May be, because of strict vigilance in the examination hall the candidate was not in a position to take out the papers from the pencil box and use the same. The very fact that she took the papers relevant to the examination in the paper concerned and was found to be in possession of the same by the invigilator in the examination hall is sufficient to prove the charge of using unfair means by her in the examination under the Rule.” 9. In Pradeep Kakkar v. University of Gorakhpur and another, 1982 UPLBEC 707, a Division Bench of this Court also made the following observations : “Learned counsel submits that being in possession of unauthorised material written on the question paper, the petitioner was not attempting to use unfair means. The unauthorised material was written on the question paper itself. It was obviously intended to be used at the examination. The unauthorised material was written on the question paper itself. It was obviously intended to be used at the examination. The fact that the petitioner did not get an adequate opportunity to use the unauthorised material was immaterial to the charge of attempt to use unfair means. Means become unfair as soon as unauthorised material is brought into the examination hall, be it written on question paper or anywhere also. So long as the unauthorised material is found in possession or near the students that he can possibly use it, the possession of the unauthorised material is enough to bring home the charge of attempt to use unfair means. If the same has actually been used the charge would be using of unfair means. It cannot be said that being in possession of unauthorised material is immaterial to the charge of attempting to use unfair means. We are hence not satisfied that the University authority acted in excess of the powers possessed by him in cancelling the examination on the finding of attempting to use unfair means.” 10. The first submission of the learned counsel for the petitioner cannot, therefore, be accepted. The University was justified in imposing punishment for using unfair means at the examination. 11. The next submission advanced by the learned counsel for the petitioner is that even if it is assumed that the petitioner had used unfair means at the improvement examination, then the University could have only cancelled the improvement examination result but could not have cancelled the main examination result of 2005. 12. This submission of learned counsel for the petitioner cannot also be accepted. According to Ordinance 19.06 contained in Chapter XIX of the Ordinances framed by the University, a candidate, with a view to improving the result, may be allowed to appear in one subject in one paper in B.Ed. in the next regular examination of the University. The stand of the University is that in case the petitioner obtained higher marks in the improvement examination, then the marks obtained in the improvement examination shall be awarded for the 2005 Examination. 13. Thus, the improvement examination forms part of the main examination and if a candidate obtains higher marks in the improvement examination then the marks so obtained shall replace the marks awarded in the main examination. 13. Thus, the improvement examination forms part of the main examination and if a candidate obtains higher marks in the improvement examination then the marks so obtained shall replace the marks awarded in the main examination. In such circumstances, if unfair means is used at the improvement examination, the University will be justified in cancelling the main examination result. 14. There is, therefore, no merit in the petition. It is, accordingly, dismissed. ————