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Narendra Singh v. Dy. Registrar Allahabad University & Another - WRIT - C No. 19269 of 1998  RD-AH 15 (28 March 2001)
CIVIL MISC.WRIT PETITION NO.19269 OF 1998
Deputy Registrar [Examination], Allahabad University,
Allahabad and others
Hon'ble R.K.Agrawal, J.
The petitioner, Narendra Singh has filed the present petition seeking a writ, order or direction in the nature of certiorari calling for the record of the case and quashing the order dated 2.3.98 passed by the Deputy Registrar [Examination], Allahabad University, Allahabad, respondentno.1, [filed as Annexure-1 to the writ petition]. He further prays for issuance of a writ, order or direction in the nature of mandamus directing the respondents not to give effect to the order dated 2.3.97 and also to permit the petitioner for appearing in B.A. 3rd year examination, which is likely to be held from 13.6.98.
The facts of the case in brief are that the petitioner was a regular student of Allahabad University and had appeared in B.A. Part-I in the year 1995. He appeared in B.A. Part-II examination conducted by the Allahabad University in the year 1997. It is alleged by the respondents that while answering Philosophy Ist Paper in B.A. Part-II examination 1997, he had written in 'B' copy which had not been issued by the invigilator in the examination hall. This fact was reported by the invigilator subsequently. A show cause notice was issued on 21.1.1998 by the Controller of Examination, calling upon the petitioner to show cause as to why the examination be not cancelled and further why he should not be debarred for further one year. According to the petitioner, he submitted his reply on 20.1.1998 in which he had stated that he had not brought any written 'B' copy in the Examination Hall and he was not in possession of 'B' copy. Specific averment to that effect has been made by the petitioner in paragraph 18 of the writ petition .In the counter affidavit filed by Sri Santosh Sahai, Legal Assistant in the University of Allahabad, in reply to the contents of paragraph no.8 it has been submitted that the petitioner was caught using unfair means in the examination hall and all the formalities were done in presence of the petitioner, which is clear from the records. In paragraph-9 of the counter affidavit it has been stated that 'B' copy was not issued to him and he had brought it from outside.
Sri A.B.L. Gaur, learned Senior counsel appearing for the University of Allahabad had produced the record relating to the decision taken by the Unfair means Committee in the present case. The record contains three documents excluding the answer book. The first document is the information sent by the invigilator to the University authorities in which it has been stated that 'B' copy No.2134708 has been brought from outside as recorded by the invigilator and bears the endorsement of the Centre Superintendent. This report is dated 8.11.97. The next document is the carbon copy of the notice issued to the petitioner and the 3rd document is the decision taken by the Unfair means Committee. The decision taken by the Unfairmeans committee is in the printed form and only the blanks have been filled up.
I have heard Sri N.K. Pandey, learned counsel for the petitioner and Sri A.B.L. Gaur, learned Senior counsel appearing on behalf of the respondents.
Learned counsel for the petitioner submitted that the prescribed notice within seven days was not given and, therefore, the action taken by the University authorities is wholly illegal and is liable to be setaside. He further submitted that in any event the order of the Unfair means Committee cancelling B.A. Part-II 1997 examination of the petitioner and debarring him from appearing in the subsequent examination has been passed after ignoring the relevant material viz. his reply
which he had submitted on 20.1.98 has not been taken into consideration at all. Further the committee had not applied its mind and no reasons have been recorded and the order has been passed mechanically. Thus, the order cannot be sustained. In support of his plea he relied upon a decision of the Division Bench of this Court in the case of University of Allahabad and others v. Shailendra Kumar Srivastava reported in  2 UPLBEC-973.
Sri A.B.L. Gaur learned counsel for the respondents, however, submitted that the Invigilator had himself reported that 'B' copy used by the petitioner has not been issued in the examination hall and, therefore, the necessary inference is that the petitioner was in possession of the said 'B' copy and therefore, he is guilty of using unfair means. According to him the provisions requiring giving of notice within seven days is not mandatory and if the notice has been given subsequently beyond the period of seven days, the notice will not be invalid. In support of his aforesaid plea he relied upon the decision of this Court in the case of University of Allahabad and others v. Shailendra Kumar Srivastava reported in  2 UPLBEC-973. He further submitted that even though, the decision taken by the Unfair means Committee is in the printed form yet the committee has applied its mind to the facts and relevant materials and therefore, the order calls for no interference.
Having heard the learned counsel for the parties, I find that the averments made in paragraph 18 of the writ petition that the petitioner had replied on 20.1.98 is not disputed by the University as would be clear from the averments made in paragraphs-8 and 9 of the counter affidavit filed by Sri Santosh Sahai. From the record produced before the Court it does not appear that the reply submitted by the petitioner has been taken into consideration. On a querry put by the Court as to which Centre 'B' copy bearing No.213708 has been sent by the University, the learned counsel submitted that more than 3 and a half years have passed and the record has been weeded out and it is not possible for him to make any statement.
So far as the question as to whether not giving of notice within seven days would invalidate the proceedings or not is concerned, I find that this Court in the case of University of Allahabad and others v. Shailendra Kumar Srivastava [supra] has held the provision requiring giving of notice within seven days to be directory and not mandatory. In paragraphs -12 and 13 of the report the Court has held as follows :
" From the aforesaid conclusion it is clear that the use of word "shall" in the provision does not necessarily make it mandatory. For ascertaining its true character, it has to be considered in the light of the intention of the legislature and the consequences, which shall flow, should also be taken into consideration. The learned Single Judge agreeing with the views expressed by the learned Single Judge in earlier judgments, has held that the provisions of Ordinance No.1.3 are mandatory and non-compliance of the same shall vitiate the order. It cannot be denied that object and purpose behind making the aforesaid Ordinances is to prevent use of unfair means and disturbances during examination. It cannot also be denied that the menace of using unfair means during examination has seriously prejudiced the educational standard of the country. Thus, if the provision of service of notice within seven days from the date of incident is held to be mandatory, it shall defeat the very purpose and object for which the Ordinances have been framed. To conduct examinations in the present days is a difficult task and generally it is found beyond control of the staff available within the campus, invariably help of the administrative authorities is sought. Thus, in the prevailing circumstances, if an action against use of unfair means is held to be not maintainable if notice is not given within seven days, the mischief shall prevail and the performance of innocent students shall be prejudiced. Thus a serious inconvenience will be created to the general public without furthering the object of the provisions. On the other hand, if the provisions is held to be directory, it shall suppress the mischief and promote public justice. In the context of the scheme and object of the ordinances the harmonious interpretation would be that giving of notice within seven days cannot be held to be mandatory and it may be given within reasonable time which may not cause any prejudice to the candidate. The observations of Hon'ble Supreme Court in case of Controller of Examinations etc.etc. v. G.S. Sunder and another, JT 1992 SC-204, regarding the menace of using unfairmeans in the Examinations are very relevant in considering this question which are being reproduced below :
"............. In the present system of education, the system of examinations is the best suited to assess the progres 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. For instance, we cannot but strongly condemn copying in the examination, which has grown into cancer of mass copying. Such unhealthy practices which are like poisonous weeds in the field of education must be rooted out in the order that the innocent and the intelligent students are not affected. We feel that :
" the hour has come
when we must clear
the educational fields from
poison and from fear.
We must remould our standards
Build them higher.
And clear the air as though by
Weed out the demning trattors to
Restore her to her and ent
place of awe."
From a close look of Ordinance No.1.3, it appears that the intention of the framers was to prefer a personal service of notice on the candidate and if that is not possible, for the reasons stated there, it may be served by Registered Post. It cannot be said that if an attempt to serve notice personally in the examination hall has not been made, a notice by Registered Post cannot be served. The provision provides only for alternative modes and personal service in the examination hall is not a condition precedent. Sometimes the use of unfair means is noticed by the examiner on perusal of the answer books and in such circumstances, personal service of notice in the examination hall may not be possible in any manner, but at the same time the action against use of unfair means may be necessary. In such cases notice may be served directly be Registered Post. Thus, the provisions as contained in Ordinance 1.3 generally are mandatory as they provide for notice to the candidate before taking any action. However, part of the provisions contained in it are directory also, as indicated above. In our opinion, the contrary view taken by the learned Single Judge in the impugned judgment and also in case of Amit Kuimar Singh, Sundaram Srivastava and Jyoti Prakash Pandey [supra], are not correct and they are hereby over-ruled. Under Ordinance No.1.3, service of notice as provided therein is necessary and mandatory, but it should be within reasonable time which may not result in any kind of prejudice to the candidate concerned. Whether a prejudice has been caused to the candidate by service of notice beyond the period of seven days has to be considered in the facts and circumstances of each case and no uniform rule can be laid down to meet the situations of all the cases. In such circumstances, the order of punishment for use of Unfair means cannot be quashed merely on the ground that the notice was served beyond the period of seven days or on the ground that notice was served by registered post without any attempt for personal service in the examination hall. Both these provisions are directory in nature."
Respectfully following the aforesaid decision, it is held that not giving of notice within seven days did not invalidate the proceedings.
So far as the second submission that the Unfair means Committee had not considered the relevant material viz. the petitioner's reply before passing the impugned order and no reasons have been recorded is concerned, the legal position has been settled by this Court in the aforementioned case of University of Allahabad and others v. Shailendra Kumar Srivastava wherein it has held as follows :
" From a conjoint reading of Ordinances 1.5 and 1.6, in our opinion, it is clear that the Committee referred to in Ordinance No.1.5 has to record reasons. In Ordinance No.1.6, the words " after placing on record that it has examined all the documents referred to in Ordinance No.1.5 and that it has satisfied itself regarding the facts of the matter" are indicative of the fact that Committee has to record reasons for the aforesaid two aspects that it examined all the documents and it has satisfied itself. Thus, from the plain language used, it is clear that Committee has to record reasons but at the same time not like a Court but only like an administrative authority discharging the quasi-judicial functions. The Committee has to express its mind about the explanation tendered and other considerations provided in Ordinance 1.5.
A Division Bench of this Court of which one of us [Justice R.R.K. Trivedi] was a member, in case of Rajesh Misra v. University of Allahabad and others, 3 UPLBEC 1756, has taken similar view in para 13 of the judgment, relevant portion whereof is being reproduced below :
13. .......... In our considered view, the committee appointed under Ordinance No.1.4 miserably failed to decide the matter in terms of the requirements provided in Ordinance Nos. 1.5 and 1.6. There is no discussion in the proceedings about the reply of the petitioner, the allegation against him and the reports of the examiner and invigilator. Had there been actual application of mind of the member of the Committee, it would not have been difficult to notice the aforesaid apparent discrepancies pointed out by us. The decision of the Committee in printed form could not be substitute of a decision taken on application of mind to the material on record. In our opinion, the Committee decided the case in gross violation of the principles of natural justice and such decision cannot be sustained. At this place, we would like to recommend to the University not to permit use of such printed form for giving the decision of the Committee. The Committee of five members appointed under Ordinance No.1.4, should be asked to consider the cases of unfair means in terms of Ordinance Nos.1.5, 1.6 and record its minutes in handwriting by Convenor/Chairman of the Committee or any one of the members. By aforesaid observation, we do not mean that the Committee should writ a judgment like a Civil Court. We only want to convey that Committee must discharge its legal obligation imposed by Ordinance Nos.1.5. and 1.6 by writing in short analytical discussion of the charge, the reply of candidate and about the material available on record and then to record reasons in short to form its opinion for awarding the punishment. Such matters are very delicate and casual handling like in the present case should be avoided."
In our opinion, the view taken by the learned Single Judge on this aspect of the matter is justified and does not call for any interference. As we have already held that in Ordinance 1.6 there is an implied obligation cast on the Committee to record reasons, it is not necessary to refer to the various decisions cited by learned Counsel for the parties."
The order passed by the Unfair means Committee is reproduced below:
" The committee appointed under Ordinance 1.4 of the ORDINANCES ON THE USE OF UNFAIR MEANS AND OF CAUSING DISTURBANCES IN EXAMINATION OF THE UNIVERSITY OF ALLAHABAD has carefully considered all the documents as referred to in Ordinance 1.5 relating to the alleged use of Unfair Means in the .........................................
B.A. II ..... Examiknation of 1997 by Narendra Singh
................................................. Roll No.61448.........
on 29.08.97............................... in Philosophy........
Paper -I ..... and, after having satisfied itself of the facts of the matter, held the said candidate guilty of the offence stated in Ordinance 1.5 and, therefore award him/her the following punishment as prescribed under the said Ordinance 1.5...............
Cancellation of the results of the candidadte in the..................... examination of 19
Cancellation of the results of the candidate in the B.A.-II...... examination of 1997 and department from the corresponding ( and any other ) subsequent examinations of 1998.
Cancellation of the result of the candidate in the.............. Examination of 19 and department from the corresponding ( and any other) subsequent examinations of 19 ,19 and 19 and permanent prohibition against the issue of any character certificate to the candidate by the proctor of the University and the inscription of a recital of this punishment in the Migration Certificate of the candidate.
[Hand written words and figures in the order has been reproduced here in Italics]
From the perusal of the aforesaid order I find that there is nothing to indicate that the explanation of the petitioner was considered. Thus, the order cancelling the examination of the petitioner for B.A. Part-II 1997 and debarring him to appear in the subsequent examination cannot be sustained and is hereby setaside. Since more than three and half years have passed, it would be futile exercise to direct the University authorities to take a decision afresh, inasmuch as the petitioner had already lost two valuable years in the process and had, infact, undergone the punishment given by the University authorities. The petitioner had already appeared in B.A.Part-III examination under the interim order dated 14.7.98 and 13.1.99 passed by this Court. The respondents are directed to declare the result of B.A. Part-II 1997 examination and if he has passed in the said examination then declare the result of B.A. part-III examination also. If the petitioner is entitled for appearing in one back paper in B.A. Part-II examination he be permitted to appear. This exercise should be done within one month from the date, a certified copy of this order is filed before the Controller of Examination of Allahabad University.
The writ petition succeeds and is allowed. However, the parties shall bear their own costs.
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