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2012 DIGILAW 476 (JK)

University of Jammu & Ors. v. Danish Wani

2012-08-01

HASNAIN MASSODI, M.M.KUMAR

body2012
M.M. Kumar, C.J.:-- 1. This order shall dispose of two appeals filed against the common judgment rendered by the learned single Judge of this Court. Both the appeals have been preferred by the University against the common judgment holding that the writ petitioners could not have been punished by cancelling the examination of all the papers because they were found to have indulged malpractice of transferring marks from answer sheets of one paper only. According to the learned single Judge Statute 4(1) Chapter XXXIX of the Statutes relating to use of unfair-means to the examination was applicable and the penalty for the same was prescribed in clause (d) of Statute 5 which provides for cancellation of the paper concerned in which unfairmeans were adopted and the misconduct was committed. The view of the learned single Judge is discernible from the following paras of the judgment, which reads thus: “The alleged act of the petitioner falls within clause (t) as it is alleged that he has indulged in an act which in the opinion of the authorities amounts to use of unfair means. Penalty for the act is prescribed in clause (d) of Statute 5 which provides cancellation of the paper in which unfair-means/misconduct was committed. Thus the penalty prescribed for an act which falls under clause (t) is cancellation of the paper in which unfair-means/misconduct was committed. Penalty of cancellation of all the papers is prescribed for acts which fall under clauses (1), (m)(p) and (r). The alleged act does not fall under any of these clauses. It was submitted by Mr. Thakur that the alleged act of the petitioner being grave, the University authorities have in their wisdom thought it fit to ask the petitioner to appear in all the papers. I appreciate the concern of the learned counsel for the respondents and of the University authorities in the matter as they have a solemn duty cast on them to enforce strict discipline and ensure fairness so far the academic activities are concerned particularly fairness and transparency in the conduct of examination and evaluation of answer sheets. This apart, once the statute provides a particular penalty for a particular misconduct. I feel the authorities have to go by it and they cannot impose a penalty beyond what is provided by the statute. This apart, once the statute provides a particular penalty for a particular misconduct. I feel the authorities have to go by it and they cannot impose a penalty beyond what is provided by the statute. This would amount to acting beyond the statute which cannot in any circumstance be allowed by the Courts. The matter needs afresh examination in light to clause (d) of statute (5) by the concerned authorities. In the circumstances I find due merit in the pleas raised in the petition. Accordingly, the order impugned is set aside. The respondents may act in the matter in accordance with statute (5) afresh and pass proper orders within one month. While doing so, they may give due opportunity of hearing to the petitioner. Disposed of.” 2. The appellant-University also filed a review petition bringing to the notice of the learned single Judge that adequate provisions existed in the shape of Statute 4(u) read with Statute 5(d) empowering the University to punish a student for using unfair-means/misconduct contemplated by Statute 4(u) by cancelling all his/her papers and disqualifying him/her from appearing or passing in that examination for two to five years. However, the review petition failed. 3. Mr. D.S. Thakur, learned senior counsel appearing for the appellant-University has submitted that the view taken by the learned single Judge is not sustainable especially when the findings have been recorded that the writ petitioners-respondents have used unfair-means in the examination. Once the factum of adopting malpractice in the examination is accepted, then the only question survives is whether the University could disqualify them in respect of the paper in which malpractice was committed or for whole of the examination. Accordingly to the learned counsel for learned single Judge has ignored the University Statute 4(u) read with clause (d) of Statute 5 in fact the learned counsel has fairly stated that the aforesaid Statute could not be properly pleaded before the learned single Judge which led to grave error in delivering the judgment. Mr. Thakur has pointed out that mistake was highlighted by filing review but it does not succeed. 4. Mr. A.V. Gupta, learned senior counsel has argued that one of the petitioner-respondent has re-taken the whole examination and has qualified after the punishment was imposed by the University and, therefore, one of the appeal is even otherwise infructuous. Mr. Thakur has pointed out that mistake was highlighted by filing review but it does not succeed. 4. Mr. A.V. Gupta, learned senior counsel has argued that one of the petitioner-respondent has re-taken the whole examination and has qualified after the punishment was imposed by the University and, therefore, one of the appeal is even otherwise infructuous. In respect of the other appeal it has been argued that on account of the opinion expressed by the learned single Judge applying Statute 4(t) read with Statute 5(d), the issue concerning Constitutional validity of Statute 4(u) read with Statute 5(d) were not examined. According to the learned counsel, the opportunity to challenge the vires have been lost and the matter be remanded back to the learned single Judge for opinion afresh on the issue. In the alternative he has urged that this Court may itself examine the Constitutional validity of Statute 4(u) read with proviso to Statute 5(d) Mr. Gupta has maintained that the Statute vests the University with an arbitrary power to cancel the examination of the whole semester, which is totally arbitrary and would violate Article 14 of the Constitution. Learned counsel has vehemently argued that there is lack of proportionality in the Statute because if a student is found indulging in malpractice in one subject or paper then he cannot be punished and disqualified in respect of all the papers for which he did not use the unfair-means. 5. Mr. Thakur, learned senior counsel for the University has argued that in a case of this nature when the students, in connivance with the clerical staff of the University, have indulged in malpractice of transferring marks to the Detail Marks Sheet from the answer sheet so as to secure pass marks in paper where they were failing, then strict action as per University Statute was required and there is, no element of arbitrariness if the magnitude of the misconduct is kept in view. 6. Having heard the learned counsel for the parties and going through the record with their able assistance as also the Statute, we feel that in order to appreciate the issue it would be necessary to set out Statute 4(t) and 4(u) read with Statute 5(d) which were admittedly applicable to the writ petitioner respondent and the same reads as under: “STATUTES RELATING TO MISCONDUCT/UNFAIR-MEANS IN EXAMINATIONS. 4. 4. MISCONDUCT/UNFAIRMEANS A candidate commits misconduct/unfair-means in respect of an examination, if he/she. 4. MISCONDUCT/UNFAIRMEANS A candidate commits misconduct/unfair-means in respect of an examination, if he/she. a. possesses or keeps a accessible in the examination hall any paper, note book or any other incriminating material concerned with or related to the subject of the examination in which he/she is appearing or b. gives assistance or guidance to or receives it from any other candidate or communicates or attempts to communicate with any other candidate or person in or outside the examination half in respect of any matter concerned with or related to the subject of the examination in which he/she is appearing, or c. copies or he copied in the examination hall from any paper, book or note or then any other incriminating material if relevant to the subject of the examination in which he/she is appearing or has appeared as the case may be; or d. changes his seat with any other candidate or occupies a vacant seat of any other candidate not allotted to him without prior permission of the officer incharge, examination; or e. refuses to obey the orders of the Officer incharge, Examination; or f. misbehaves or creates disturbance of any kind in and around the examination hall or organizes a walkout to instigates others to walk out; or g. abets impersonation or impersonates or misrepresents any other candidate in connection with the examination, or h. smuggles in an answer book or continuation sheet or takes out or arranges to send out the question paper or any answer book or a continuation sheet or replaces the answer book, its inner sheets or continuation sheets during or after the examination with or without the connivance of the staff on duty in connection with the examination; or i (I) threatens the Officer-in-charge or any person on duty in or outside the examination hall of any injury to his person or to any of his relations whether by words, either spoken or written or by signs or by visible representation with a view to inducing the Officer-In-charge examination or any person on duty in or outside the hall to show any concession, or (II) assaults the Officer-in-charge or any person on duty in or outside the examination hall or any of his relations, with a view to coercing the officer-in-charge, examination, or any person on duty to show any concession, or (III) indulges in any other act of misconduct or mischief which results in damage to or destruction of property in the examination centre or of the University/College or of any other person connected with the examination, or j. makes a distinctive marks in the answer book with an intent to disclose his identity, or k. appeals to or approaches the examiner or the Controller of Examinations by himself/herself or through any other person for obtaining any concession in respect of the Examination in which he is to appear or appearing or has appeared, or makes an appeal to the examiner in his answer book or continuation sheet(s); or “incriminating material shall include any marks or impressions recorded on any part of the body apparel of the candidate, any other thing in possession of the candidate, which can be used as an aid in the subject of examination. l. uses abusive or indecent marks, caricatures or language in the answer book or continuation sheet(s); or m. obtains or attempts to obtain admission to an examination on false representation made on his/her admission form/permission slip or forges another person’s signature on his/her admission form or permission slip; or n. during the course of the examination, writes either on blotting paper or any other piece of paper/material a question set in the question paper or anything connected with or relating to a question set in the question paper or solution thereof; or o. possesses a solution to a question set in the paper through connivance of any member of the supervisory or menial staff or an outside agency; or p. leaves the examination hall without delivering the answer book and takes away the same with him/her or intentionally tears off the script or any part thereof or continuation sheet or part thereof inside or outside the examination hall; or q. approaches or influences, directly or indirectly, regarding his/her unfair means case, a member of the Committee for Scrutiny or Misconduct/Unfair means cases or any University official; or r. forces or attempts to force his/her entry into examination hall for the purposes of taking the examination even after being told that he/she is not eligible to sit in the examination, or s. possesses any lethal weapon or fire arm or comes in drunken condition to the examination hall; or t. engages in any other act or omission which, in the opinion of the Competent Authority, amounts to use of unfair means or misconduct or has the tendency to disrupt the orderly conduct of the examination. u. commits any other act before, during or after the examination, which in the opinion of the “Competent Authority” tantamount to unfair means/misconduct. 5. In all cases in which the alleged misconduct/unfair means of the candidate is for the first time during the course of the examination or examinations taken by him/her in the University, the following procedure shall be adopted. a.................. b.................. c.................. d. on consideration of the record of the case if the Sub-Committee is satisfied that the candidate has committed misconduct/unfair means it shall cancel all papers of that examination and disqualify him/her from appearing or passing in that examination for a period of one year. a.................. b.................. c.................. d. on consideration of the record of the case if the Sub-Committee is satisfied that the candidate has committed misconduct/unfair means it shall cancel all papers of that examination and disqualify him/her from appearing or passing in that examination for a period of one year. Provided that except in the case covered by paragraph (i-1), (1), (m), (p), (r) of statute 4, if the Sub-Committee is of the opinion that the candidate is repentant and willing to sign an undertaking that he/she shall not repeat the misconduct/unfair-means in any examination, it may impose punishment prescribed in column B for unfair means/misconduct of the nature described in column A below: A (Nature of Unfair-means/misconduct) B (Punishment) 1 Statute-4 Paragraphs (a), (b), (c), (d), (e), (j), (k),(n), (o), (q) Cancellation of all papers of that examination 2 Statute-4 Paragraphs (f), (i-1), (f), (m), (p) & (r) Cancellation of all papers of that examination and disqualification from appearing of passing that University examination for a period of one year Provided further that cases of unfair-means/misconduct of the nature described in paragraphs g, h and i(II), i(III) s, t and u of the Statute-4 shall not be referred to the Sub-Committee but to the “Competent Authority” for decision, by the Controller of Examinations. The “Competent Authority” shall have the authority to punish this kind of unfair means/misconduct by cancelling all his/her papers of that examination and disqualifying from passing or appearing in that University examination for a period of two to five years.” 7. A perusal of the Statute relating to misconduct/unfair-means in the examination would show that a candidate commits mis-conduct/unfair-means in respect of an examination, then a proportionate punishment has been adopted by Statute 5. Statute- 4 seeks to envelop all possible types of malpractices and unfair-means which a candidate could adopt in an examination or outside. It a case of unfair-means adopted by the writ petitioner, Clause (u) of Statute 4 alone could have been used. Statute- 4 seeks to envelop all possible types of malpractices and unfair-means which a candidate could adopt in an examination or outside. It a case of unfair-means adopted by the writ petitioner, Clause (u) of Statute 4 alone could have been used. Statute 4(t) postulates that if a candidate engages in any other act or omission which amounted to use of unfair-means or misconduct or it has the tendency to disrupt the orderly conduct of examination, even then the competent authority, as per the proviso, is vested with the power to punish such a candidate by cancelling all his papers of that examination and disqualify him from passing or appearing in that University examination for a period of two to five years. However, the nature of misconduct committed by the writ petitioners is more appropriately covered by Statute 4(u), because misconduct has been committed after the examination, inasmuch as, the writ petitioner-respondents have tampered with the tabulation sheet in order to ensure that they are shown to have passed the examination in connivance with the clerical staff which is a misconduct and cheating committed after the examination. By no stretch of imagination it could be regarded as disrupting the orderly conduct of examination within the meaning of Statute 4(t). In any case in both types of misconduct, proviso to Statute 5(d) would be applicable because it vests the competent authority with adequate power to punish such a candidate by cancelling all his papers of the examination and even disqualify him from passing or appearing in the University Examination. Therefore, we are of the view that the learned single Judge has committed a grave error by issuing directions to the University to examine the matter afresh in the light of clause (d) of Statute 5. Even otherwise the opinion expressed by the learned single Judge with regard to Statute 4(t) looks to be patently erroneous because the misconduct committed under Statute 4(t) would also cover the punishment of cancelling all the papers. Moreover there is candid statement made by learned counsel for the University that before the learned single Judge there was an error committed by adopting an incorrect stand that the power exercised by the University in respect of Statute 4(u)was not available at that stage. Moreover there is candid statement made by learned counsel for the University that before the learned single Judge there was an error committed by adopting an incorrect stand that the power exercised by the University in respect of Statute 4(u)was not available at that stage. As notification dated 27-12-2006 was passed later than the decision of the University to cancel the examination which was taken vide University’s notification dated 4-7-2006. The error has resulted in rendering the judgment by the learned single Judge. However, it later transpired that Statute 4(u) read with proviso to Statute 5(d) was very much on the University Calendar when the writ petitioners-respondents had committed the misconduct because those provisions have been brought into force vide Notification No. 3 of 1999 dated 16-11-1999 (annexure R5) with the LPA. The aforesaid factual position has not been disputed by Mr. Gupta. Therefore, there is error on fact which had led to the judicial pronouncement. Such an error can always be rectified in LPA. 8. The question then is whether Statute 4(u) read with proviso to Statute 5(d) ultra vires Article 14 of the Constitution. According to Mr. Gupta the principle of proportionality has been sacrificed and arbitrary power has been vested with the competent authority vide proviso to Statute 5(d) which may punish a candidate committing misconduct of the kind postulated by Statute 4(u). 9. It is well settled that Article 14 forbids class legislation by grouping together same class of persons but permits reasonable classification. To satisfy the Constitutional test of permissible classification, two conditions must be satisfied namely, that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that such differentia must have a rational nexus to the object sought to be achieved. The classical statement of law was evolved in the old judgments like Express Newspapers (P) Ltd. v. Union of India, AIR 1958 SC 578 , Babulal Amthalal Mehta v. Collector of Customs, AIR 1957 SC 877 , Lachmandas Kewalram Ahuja v. State of Bombay, AIR 1952 SC 235 and Ram Krishan Dalmia v. Justice S.R. Tedulkar, AIR 1958 SC 538 . 10. 10. When we apply the aforesaid principles to the provisions of Statute 4(u) as well as proviso to Statute 5(d), it becomes evident that the object of these provisions is to check the students from indulging into any malpractice vitiating the sanctity of examination. It is also evident that the magnitude of misconduct has direct relationship with the punishment. 11. In the case of Maharashtra School Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth (1984) 4 SCC 27 : ( AIR 1984 SC 1543 ) their Lordships of the Supreme Court made observations which can be aptly quoted which reads as under:-- “A regulation or even a bye-law cannot be struck down by the Court on the ground of unreasonableness merely because the Court thinks that it goes further than “is necessary” or that it does not incorporate certain provisions which in the opinion of the Court, would have been fair and wholesome the Court cannot be that a bye-law is unreasonable merely because the Judges do not approve it. Unless it can be said that a bye-law is manifestly unjust capricious, inequitable or partial in its operation it cannot be invalidated by the Court on the ground of unreasonableness. The responsible representative body entrusted with the power to make bye-laws must ordinarily be presumed to know what is necessary, reasonable, just and fair.” 12. On the question of constitutional validity of an authority vested with the power to cancel even the whole examination, it has been observed by Hon’ble the Supreme Court in the case of Chairman, J.&K. State Board of School Education v. Fiyaz Ahmad Malik (2000) 3 SCC 59 : ( AIR 2000 SC 1039 ) that in matters concerning discipline in educational institutions and conduct of examination the duty is primarily vested in the authorities who are at the helm of affairs. In such matters the Courts should try not to substitute its own views in place of the one adopted by the authorities nor the Court should thrust its views on them. In such matters the Courts should try not to substitute its own views in place of the one adopted by the authorities nor the Court should thrust its views on them. It would be profitable to quote the following extract from para No. 20 which reads as under:-- “......In judging the validity of a notification containing provisions regarding steps to be taken when a report of mass malpractice is received it is to be kept in mind whether the provisions contained in the notification are relevant for achieving the purpose for which the notification is issued and if it is found that the notification is relevant for and has a nexus with the purpose to be achieved then the notification cannot be said to be arbitrary and discriminatory. The High Court has failed to keep this principle in view while considering the validity of the notification in question. A notification cannot be struck down as discriminatory merely because in implementing the same injustice is likely to be suffered by some candidates. The impugned judgment does not show that the decision to strike down the two notifications is based on grounds sound in law and justified on facts.......” 13. It has been repeatedly emphasised by Hon’ble the Supreme Court that there should be strict discipline in academic matters and malpractices should be severely punished. If the country has to progress then high educational standards have to be maintained. It is possible only if malpractices in examinations in educational institutions are curbed with an iron hand. The Court should not ordinarily interfere with the findings and the orders of the educational institutions unless there is clear violation of some statutory rule or legal principle. There should also be strict purity in the examinations of educational institutions and no sympathy or leniency should be shown to candidates who resort to unfair means in the examination. [See Director (Studies) Dr. Ambedkar Institute v. Vaibhav Singh Chauhan (2009) 1 SCC 59] : (AIR 2008 SC (Supp) 696). 14. Even otherwise the policy of law is that the Courts are very slow in interfering in the matters concerning academic issues of the educational institutions. In that regard reliance may be placed on the observations made by Hon’ble the Supreme Court in University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491 . 15. 14. Even otherwise the policy of law is that the Courts are very slow in interfering in the matters concerning academic issues of the educational institutions. In that regard reliance may be placed on the observations made by Hon’ble the Supreme Court in University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491 . 15. Keeping in view the aforesaid principle was proceed to test the provisions of the impugned Statute. Statute 5(d) contemplates lumping together a grave misconduct try punishing a candidate by cancelling of all the papers of that examination coupled with the punishment of disqualifying a candidate for appearing in the examination for some period. We find no lack of proportionality. The menace of adopting unfair means and malpractices in the examination hall is on the rise. A person who has committed the misconduct of getting his marks transferred from the answer sheet to the tabulation sheet by tampering with the record in connivance with the University staff has been suitably dealt with by the Statute. There is a direct nexus with the object sought to be achieved and we find that the power conferred on the competent authority does not suffer from vice of arbitrariness and it is not violative of Article 14 of the Constitution. Statute 4(u) read with proviso to Statute 5(d) is accordingly upheld and it is declared that it does not ultra vires the provisions of Article 14 of the Constitution. 16. As a sequel to the above discussion the appeals are allowed. The judgment of the learned single Judge is set aside and the decision of the appellant-University inflicting upon the writ petitioner-respondents punishment of cancelling all the papers of 5th and 6th examination is upheld. Appeals allowed.