JUDGMENT : N.V.ANJARIA, J. 1. On the alleged commission of unfair means in the M.B.B.S. Part 2 examination held in January, 2016,the first respondent University imposed punishment upon the petitioner-student cancelling the result of the examination and debarring him from appearing in any University examination till the end of the Second Semester of the Academic Year 2015-16, further imposing penalty of Rs.01,000/-. It is the said order dated 08th March, 2016, which is challenged by the petitioner in this petition. 2. The petitioner faced the charge of unfair means that he tried to disclose his identity by signifying the marks of identification in his answer sheets, that he had drawn margin on the right side of the every page of the answer-sheet, that he had written page numbers on the top of the right of the every page placing numbers in a box drawn, that he had put a cross line with pencil across the third page and that the petitioner had drawn an index on the fourth page of the answer-sheets. 3. The petitioner appeared in the examination of different subjects which was held between 02ndJanuary, 2016 to 23rd January, 2016. The result was declared on 12th February, 2016. However the petitioner’s result was not declared. It appears that by letter dated 15th February, 2016, the respondent University communicated to the petitioner that his result was withheld. By another letter dated 15th February, 2016 the petitioner was asked to remain present before the Aachar Committee (Unfair Means Committee). The petitioner remained present on 24thFebruary, 2016 before the Committee as required. The Committee recorded the statement and considered thecae of alleged disclosing of identity against the petitioner and decided to impose punishment as per impugned order dated 08th March, 2016. In passing the order, report of the Disciplinary Committee was considered. It appears that the representations made by the petitioner were rejected. 4. Learned senior counsel Mr. Dhaval Dave submitted that to the facts of the case of the petitioner, a decision of the Division Bench in Siddharth Ashvinbhai Parekh Vs Veer Narmad South Gujarat University being Letters Patent Appeal No.394of 2016 decided on 11th July, 2016 would squarely apply as the petitioner in that case was identically placed and faced the similar allegations in respect of same examination and same paper and the inquiry was conducted parallel in both the cases by the Unfair Means Committee. The Division Bench held that it was a case of 'no evidence'. It was pointed out that the decision was carried before the Supreme Court but the Special Leave Petition was not entertained. 4.2 Respondent Nos.1 to 3-the University filed affidavit-in-reply. On the basis of the contents of the reply, it was submitted by learned advocate forth University that the commission of unfair means was evident by the student who was to become a doctor in future, and therefore the same should be viewed seriously. He submitted by relying on the additional affidavit-in-reply that on the answer-book itself, instructions were mentioned, according to which the petitioner was not supposed to disclose the identity and having violated the instructions, he committed unfair means. It was highlighted, by contrasting it with the special features of Siddharth Ashvinbhai Parekh (supra) that the petitioner could pass after more than one trial in the previous examination and was a dull student who wanted to seek benefit by means of disclosing identity by drawing margins, etc. 4.3 Learned advocate relied on the decision in Karnataka Public Service commission Vs B.M. Vijaya Shankar [ AIR 1992 SC 952 ], which was a case of examination under Public Service Commission and the candidate had acted contrary to instructions by writing role number inside the answer-book. Another decision of the Apex Court in Secretary, Tamil Nadu Public Service Commission Vs A.B. Natrajan [AIR 2015SC 176] to submit that in that case where appointment was being done for Group-1 services under a written examination, the petitioner candidates violated instructions and found to be careless person who are otherwise to be appointed as Class I Officers. On the ground of irregularities committed by them by not following the instructions, their selection was set aside by the Supreme Court. 4.4 Learned advocate thereafter relied onDivision Bench judgment of this Court in Sardar Patel University Vs Minal R. Jogi [ 2000 (2) GLH 199 ] from which it was sought to be highlighted that possession of material pertaining to subject of examination in the examination hall would amount to misconduct. 4.4 Learned advocate thereafter relied onDivision Bench judgment of this Court in Sardar Patel University Vs Minal R. Jogi [ 2000 (2) GLH 199 ] from which it was sought to be highlighted that possession of material pertaining to subject of examination in the examination hall would amount to misconduct. Another decision also of the Division Bench of this Court in Gujarat Secondary Education Board Vs Sami Dharampal singh Chaudhary minor through Father [ 2000(2) GLH 90 ] was pressed into service, in which student had admitted in writing about having been in possession of copying material, and it was held to bea substantial evidence. Yet another decision in Sanjay Mukundrai Desai Vs The Registrar, South Gujarat University [ 1986 GLH 1089 ] was put to be relied on to contend that as there was evidence and punishment was imposed after giving opportunity, the High Court may not interfere in the decision of the academic body. 5. Even as given all the aforesaid decisions relied on by learned advocate for the respondent University, the decision of the Supreme Court in Siddharth Ashvinbhai Parekh (supra) directly and squarely comes into play. As was noticed from the facts of that case, the said petitioner and the present petitioner, both appeared in the same M.B.B.S. examination in the same paper in the same language. The notice regarding unfair means was given to both on the same day. Both were called by communication dated15th February, 2016 before the Unfair Means Committee to remain present on 24th February, 2016. The case of the petitioners were considered in the same meeting and in the minutes, present petitioner’s case was decided under agenda No.18 whereas petitioner of Siddharth Ashvinbhai Parekh (supra) was under agendaNo.17. The impugned order is of even date in both cases. The present petitioner as well as that petitioner faced similar charges about allegedly conducting themselves to disclose their identity in the answer-book. While in the case of the petitioner the nature of acts alleged for identification revealment were as noted above, in case of the petitioner in the other case, the allegation was that the said petitioner had breached the instructions by doing rough work on a different page number than required as per the instructions and that it was deliberately done to disclose the identity and reap the advantage. As in course of hearing it was debated by learned advocates that the facts of both the case differed, the Court by order dated 19th February, 2016directed placement of papers of the petition ofSiddharth Ashvinbhai Parekh being Special CivilApplication No.3317 of 2016 and Letters Patent AppealNo.394 of 2016. 5.1 There was no gainsaying that the case of the present petitioner and case of Siddharth Ashvinbhai Parekh (supra) had similar and parallel facts and both the petitioners were virtually identically situated. In Siddharth Ashvinbhai Parekh (supra), the set of rival contentions by both the sides were on the similar lines as could be seen from the contents recording the submissions in paragraph 5 to paragraph13 of the said decision. The Division Bench applied the principle of no evidence to hold that the case against the petitioner was one of ‘no evidence’. For elucidating and applying the said principle to the facts of the case, the Division Bench relied on earlier decision of Division Bench in Siddharth Mohanlal Sharma Vs South Gujarat University [1982 GLH648]. 5.2 The Division Bench in Siddharth Ashvinbhai Parekh (supra) noticed the statement of the said petitioner given before the Committee when he remained present on 24th February, 2016 by observing and stating, “Thus, the petitioner has specifically stated that on page 23 he had done rough working and had written the points of answers which were asked in the examination and which are needed to recollect. He has further explained that there is no provision where to do rough working but in many Universities it is clearly mentioned in the examination guidelines that rough working should be done on last page and should be crossed out. Thereafter he has specifically denied the allegation that he has intention of disclosing his identity to any of the examiner. In spite of his specific denial about the allegation of disclosing his identity to the examiners, the respondents have considered the same as an admission of his guilt. Thus, on the basis of the assumption the respondent University has passed the impugned order.” (Para 18) 5.3 Pausing at this stage, the statement recorded on the same day of the present petitioner, if considered (Annexure C, Page 19), it was stated by the petitioner that providing a margin on the right hand side and mentioning page number was his way of writing. He explained that he had done that so that he could see the pages of the entire paper in serially within no time in the concluding moments of the examination time. He stated that it was done to ensure that no question is left untouched. It was stated that he had no intention to commit any unfair means and had not misconduct in any way but it was only his way of presentation the answers. He specifically denied the allegation about he having intention of committing misconduct or revealing identity thereby. Learned advocate for the petitioner struggled in vain, to contend that the facts of both the cases were different. In all respects ranging from nature of allegations to the nature of defence and the statement given by the petitioner, the facts were parallel and went hand-in-hand. It could be successfully submitted that therefore the petitioner being similarly situated, was entitled to the benefit of decision in Siddharth Ashvinbhai Paerkh (supra). 5.4 The Division Bench in Siddharth Ashvinbhai Parekh (supra), held thus, “If the respondent-University was of the opinion that by doing rough work on page 23, the petitioner has disclosed his identity then the respondent-University ought to have conducted a detailed inquiry with regard to the said allegation and after inquiry if the said fact is proved against the petitioner then he could have been punished. However, in the present case, no such inquiry was held and on the basis of presumption and assumption the impugned order is passed by the respondent-University which is not permissible in the eye of law. In the facts of the present case, we are of the opinion that it is a case of no evidence against the petitioner and therefore the respondent-University ought not to have passed the impugned order.”(Para 19) 5.4.1 The Court noticed, “From the record, it is further clear that in the impugned order dated 08.03.2016 the respondent-University has stated that the alleged misconduct against the petitioner is proved and therefore the order of penalty is passed against him. However, it is not at all stated how the alleged misconduct is proved against the petitioner. There is no discussion or reference with regard to the same and therefore the said order is a non-speaking order. However, it is not at all stated how the alleged misconduct is proved against the petitioner. There is no discussion or reference with regard to the same and therefore the said order is a non-speaking order. At this stage, it is to be noted that the respondent-University has not supplied the copy of the report of the Disciplinary Committee to the petitioner. However, the said report was submitted along with the affidavit filed before the learned Single Judge. Thus, the petitioner was also deprived of putting his defence and thereby also there spondent-University has violated the principles of natural justice.” (Para 20) 5.4.2 The Division Bench set aside the decision of the learned Single Judge in the writ petition by stating, “Thus, in a given facts, it was observed by the Honble Supreme Court that it is a systematic case of fraud committed by the concerned respondent. The facts of the present case are different and in the present case the respondent-University has on the basis of the assumption and presumption believed that the petitioner has done the rough work on page 23 with a view to disclose his identity to the examiners.”(Para 25) 5.4.3 And finally holding, “Thus, keeping in mind the aforesaid decision rendered by the Honble Supreme Court, we are of the opinion that the learned Single Judge has committed an error while not appreciating the fact that the present is a case of no evidence against the petitioner and the respondent-University has passed the impugned order on the basis of the presumption and assumption. Learned Single Judge has also not properly considered the fact that impugned order is a non-speaking order in which it is merely stated that the misconduct against the petitioner is proved but in which manner the said misconduct is proved is not at all discussed. The Honble Supreme Court in the case of Mohinder Singh Gill (supra) specifically held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In the present case, it is clear that no reason is given in the impugned order passed by the respondent-University that in which manner the allegation levelled against the petitioner has been proved. In the present case, it is clear that no reason is given in the impugned order passed by the respondent-University that in which manner the allegation levelled against the petitioner has been proved. The respondent-University cannot explain the reason by filing an affidavit annexing the report of the Disciplinary Committee. The learned Single Judge has also failed to consider the fact that the petitioner was not supplied with the copy of the report of the Disciplinary Committee.”(Para 27) 6. Now, when the decision of the Division Bench in Siddharth Ashvinbhai Parekh (supra) was carried before the Supreme Court, while dismissing the Letters Patent Appeal No.19868-19869 of 2016 on 12th August,2016, the Supreme Court passed the following order, extracting the relevant portion. “Keeping in view the special features of the case, we are not inclined to interfere. Needless to say, when we have used the words 'special features of the case', the question of law, as decided by the High Court, is kept open.” 6.1 The bone of contention turned out was that when the Supreme Court did not interfere, but kept the question of law open, whether it was permissible for this Court to take a different view. It was attempted to contend by learned advocate for the University in a naive way that the Supreme Court had not dismissed the SLP, but used the words ‘not inclined to interfere’. One fails to fathom, what differentiation learned advocate wanted to establish thereby. It was harped that because of clarification by the Supreme Court about keeping the question of law open, this Court can take differfent view and may take a departure in light of facts of the present case. 6.2 It was in futility that learned counsel for the University relied on these decisions-in (M/s)Avanti Organization Vs Competent Authority and Additoinal Collector, Urban Land Ceiling, Rajkot[ 1989 (1) GLH 400 ], in Patel Forum Jitendrabhai Vs State of Gujarat being Letters Patent Appeal No.1309of 2015 decided on 23rd March, 2016, in The Saurashtra University thorugh Registrar Vs Gautambhai Nareshbai Chaudhari being Letters Patent Appeal No.1351 of 2012decided on 27th August, 2013 and in B.S. Manjunath Vs V. Kannan [2014 (3) KantLJ 198]. Another decision in Gujarat Secondary Education Board Vs Mihir Satishbhai Padmani in Letters Patent Appeal No.646 of 2016 was pressed into service with misconception about its application as the facts therein were totally different and could in no way support the respondent in his contention that a view different than the Supreme Court has taken in SLP in Siddharth Ashvinbhai Parekh (supra) could be taken. 6.3 The question as to the precedential effect of the observation and clarification of the Supreme Court when it in its order provides that though the Special Leave Petition is dismissed but question of law is kept open, was considered by the binding Division Bench judgment of this Court in Collector Vs Liquidator-Petrofills Cooperative Limited being Miscellaneous Civil Application (For Review) No.1412of 2015 decided on 23rd October, 2015. 6.3.1 A clear answer is provided from the discussion from paragraph 26 to 28, reproduced hereinbelow. “The question therefore is, in the present case was the SLP dismissed by citing reasons or was a simplicitor order of dismissal. We have reproduced the order of SLP in the earlier portion of this judgment. The order records that on facts of this case, the Court was not inclined to exercise jurisdiction under Article 136 of the Constitution of India. While therefore, dismissing the SLP the Court proceeded to observe However, the question of law is kept open. In our understanding neither the expression that on the facts of the case, the Court was not inclined to exercise jurisdiction under Article 136 or that the question of law is kept open, would indicate the reasons for not entertaining the SLP. As has been observed in case of Kunhayammed and others v. State of Kerala and another [(2000) 6Supreme Court Cases 359] and Gangadhara Palo v. Revenue Divisional Officer and another [(2011) 4 Supreme Court Cases 602], SLP can be dismissed for variety of grounds, could be on the ground of delay, latches, equity or simply because the Supreme Court thinks in a given set of facts, it is not appropriate to exercise discretionary power to entertain the SLP. The thrust of the order was that the Court was not inclined to exercise jurisdiction under Article 136 of the Constitution. The thrust of the order was that the Court was not inclined to exercise jurisdiction under Article 136 of the Constitution. Mere expression of disinclination coined in a slightly different phraseology does not amount to giving reasons.”(Para 26) 6.3.2 The Division Bench next stated, “Further the expression question of law is kept open would only guard against any future contention that the Supreme Court had confirmed the ratio of the judgement under challenge whereby either giving rise to a possible contention of merger or that even in future cases, Supreme Court would be precluded from considering such an issue in better facts.”(Para 26) 6.3.3 It was elaborated and explained, “When the Supreme Court records that the question of law is kept open, undoubtedly it is meant to be reconsidered in future by the Supreme Court only. The question of law, as correctly contended by Shri P. Chidambaram, is not kept open for the High Court. This is precisely what was held and observed by the Division Bench of this Court in an unreported decision in Tax Appeal No. 380/2013 dated 9/12/2013. We are in full agreement with the view expressed therein. It was a case where an issue of unabsorbed depreciation under section 32(2) of the Income Tax Act, 1961, was raised by the Revenue before the High Court. An identical issue was already decided by the High Court in case of General Motors India (P) Ltd. v. Deputy Commissioner of Income Tax reported in (2013) 354 ITR 244(Guj) by allowing the appeal of the assessee and setting aside the order of the Commissioner. The judgement of the High Court was carried in appeal before the Supreme Court. The Supreme Court dismissed the SLP making it clear that the question of law is kept open. When a similar question came up before the High Court in the Tax Appeal, the Revenue argued that when the Supreme Court has left the question of law open, it would be open for the High Court to reconsider the issue regardless of the judgement of another Division Bench in case of General Motors Pvt. Ltd.(supra). It was in this background, Division Bench made the following observations: “(10) Now so far as the submission made by learned counsel appearing on behalf of the revenue that though against the decision of the Division Bench of this Court in the case of General Motors India(P) Ltd Vs. It was in this background, Division Bench made the following observations: “(10) Now so far as the submission made by learned counsel appearing on behalf of the revenue that though against the decision of the Division Bench of this Court in the case of General Motors India(P) Ltd Vs. Deputy Commissioner of Income Tax(supra), as such, Special Leave to Appeal was preferred before the Honble Supreme Court and the same came to be dismissed by the Honble Supreme Court on the ground of delay and kept the question of law open, this Court may consider the question of law raised on merits is concerned, the same cannot be accepted. It is required to be noted that as such, consideration of the question raised with respect to set off of unabsorbed depreciation on merits, there is a direct decision of the Division Bench of this Court in the case of General Motors India (P) Ltd Vs. Deputy Commissioner of Income Tax (supra). Against the said decision, the Special Leave to Appeal was preferred and the same came to be dismissed on the ground of delay and the Honble Supreme Court kept the question of law open. Therefore, it cannot be said that the said question of law is kept open by the Honble Supreme Court to consider subsequently by this Court Coordinate Bench. It can be said that the said question of law is kept open by the Honble Supreme Court to consider subsequently in other cases by the Honble Supreme Court. So far as this Court is concerned, the decision of the Division Bench of this Court in the case of General Motors India (P) Ltd Vs. Deputy Commissioner of Income Tax (supra)is binding unless a contrary view is taken and the matter is referred to the Larger Bench. In view of the decision of the Division Bench of this Court in the case of General Motors India (P) Ltd Vs. Deputy Commissioner of Income Tax (supra) which has been relied upon by the learned ITAT while passing the impugned judgment and order, as such, no question of law much less any substantial question of law arises now.” (Para 27) 6.3.4 The Division Bench ruled about correct legal position thus, “We are in full agreement with the view so expressed and in our understanding brings about a correct legal position. When a question of law is kept open by the Supreme Court not entertaining a SLP against the judgement of the High Court, in fact, what is done is neither to confirm nor to dilute the ratio of the judgement under challenge. That however, does not mean that the High Court in a future case is allowed to take a fresh view ignoring the law of precedence. It only means that the Supreme Court refused to bind itself orput its seal on the ratio propounded by the High Court in the judgement under challenge. Therefore, when an identical question comes up before the same High Court and is presented for consideration before a Bench of coordinate strength, by virtue of principles of law of precedence, the Bench would be bound by the ratio of the earlier judgement of the High Court, unless persuaded to refer it to a larger Bench. This is precisely what has been recorded by the Division Bench in the said case and this is why the Bench was of the opinion that it had either to follow the ratio in case of General Motors or make a reference to the larger Bench. This per-se however, would not mean that there view consideration is shut out, if the review is otherwise maintainable. Normally, in almost all the cases, the same Bench would be reconsidering the matter on the grounds raised in the review petition. If in theprocess, it is found that the proposition of law laid down suffers from some error apparent on face of therecord, review certainly would be available. In other words, if a decision has become final, it wouldcontinue to bind the Bench of coordinate strength of the same High Court in future though in SLP the Supreme Court it might have been observed that the question oflaw is kept open. But when a review petition comes before the same Bench, it is the judgement in review which is being criticised. It would have the samelimitations as in any other case of review where SLP may not have been filed. Nothing more nothing less. In other words, the expression question of law is kept open does not put any additional fetters on the High Court exercising review powers.”(Para 28) 6.4 As recorded above, by comparing the facts on record, the theory that the present case offers different facts could hardly be countenanced. Nothing more nothing less. In other words, the expression question of law is kept open does not put any additional fetters on the High Court exercising review powers.”(Para 28) 6.4 As recorded above, by comparing the facts on record, the theory that the present case offers different facts could hardly be countenanced. Nor the aspect of special feature of case hold good. As noticed from the comparison of facts of both the case, they were similar wherein both the students were proceeded in same way on similar nature of charge. The principle of ‘no evidence’ and the attended reasoning supplied by the Division Bench apply to the present case with equal force. 6.5 When the Apex Court does not entertain any Special Leave Petition while observing that it was keeping the question of law decided to be kept open, such question would be treated to have been left open for the Supreme Court only. As far as the High Court is concerned, it woudl be bound by the judgment not interfered with in the Special Leave Petition as per the law of precedence. In the subsequent case with similar facts and identical issue, the decision not interfered with by the Supreme Court would bind and the different view would be prohibited to be taken on the spacious ground that the question of law kept open, which was the liberty reserved by the Supreme Court for itself only. Therefore, in the instant case when Division Bench judgment in Siddharth Ashvinbhai Parekh (supra) was left untouched by the Supreme Court but the question of law was kept open, in the subsequent case considered by this Court where the facts were even otherwise found to be similar and the issue identical, this Court is bound by the decision in Siddharth Ashvinbhai Parekh (supra). 7. For the aforesaid reasons and consideration, the petitioner deserves to succeed. Accordingly, impugned order dated 08th March, 2016 passed by the respondent University is hereby set aside and the respondents are directed to declare the result of the petitioner within three days from today. FURTHER ORDER At this stage, learned advocate Mr. A.R. Thacker prays for staying of the aforesaid judgment and order. In view of what is held, the request could not be accepted and hence, rejected. (petition rejected)