IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 WP(C).No. 3831 of 2010(D) ------------------------------------ PETITIONER(S): ---------------------- AMBAREESH.T.V,6TH SEMESTER B.TECH (MECHANICAL-A)STUDENT,MAR ATHANASIUS COLLEGE OF ENGINEERING,KOTHAMANGALAM. BY ADV. MR.ELVIN PETER P.J. RESPONDENT(S): ------------------------ 1. THE MAHATMA GANDHI UNIVERSITY-REP;BY ITS REGISTRAR,ATHIRAMPUZHA,KOTTAYAM. 2. THE REGISTRAR,MAHATMA GANDHI UNIVERSITY, ATHIRAMPUZHA,KOTTAYAM. 3. THE CONTROLLER OF EXAMINATIONS, MAHATMA GANDHI UNIVERSITY,ATHIRAMPUZHA, KOTTAYAM. ADV. MR. T.A. SHAJI, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON 22/03/2010 DELIVERED THE FOLLOWING: W.P.(C) NO.3831/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CHAPTER 14 OF M.G.UNIVERSITY 2 MANUAL. P2:- COPY OF THE COMMUNICATION DTD. 14.1.2010 ISSUED BY THE PUBLIC INFORMATION OFFICER. P3:- COPY OF THE ENQUIRY REPORT. P4:- COPY OF THE INTERIM ORDER DTD. 18.6.08 IN WPC. 18342/08 OF THIS HONOURABLE COURT. P5:- COPY OF THE INTERIM ORDER DTD. IN WPC. 32271/08 OF THIS HONOURABLE COURT. P6:- COPY OF THE SHOW CAUSE MEMO DTD. 28.5.09 ISSUED TO THE PETITIONER. P7:- COPY OF THE REPLY SENT BY THE PETITIONER TO EXT.P6 MEMO. P8:- COPY OF THE ORDER DTD. 15.1.2010 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 3831 of 2010-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of March, 2010. JUDGMENT The main question raised in this writ petition is whether the action taken by the respondents in cancelling the examinations undertaken by the petitioner is correct. The challenge is against Ext.P8 proceedings of the University. 2. The petitioner is a student of B.Tech Mechanical Engineering studying in the 6th Semester in Mar Athanasius College of Engineering, Kothamangalam. He joined the course in July 2007, during the academic year 2007-2009. 3. The first year examination for Semester 1 and 2 was conducted on 21.5.2008 and the petitioner appeared for six papers including Basic Electrical Engineering which was held on 16.6.2008. The squad which consists of two Professors of the very same college, and who are having power to supervise the examination, recovered from the petitioner the calculator which he was using. On the lid of the calculator a particular formula was inscribed by impression over the label containing the conversion codes. According to the petitioner, he was not aware of it and wpc 3831/2010 2 some senior students who had utilized the calculator, after borrowing it from the petitioner, might have scribbled it. The scribbling has nothing to do with the examination taken by the petitioner as the entire thing was not known to the petitioner as he was not familiar with the said formula. Action was taken against him immediately and he was not allowed to continue the balance portion of the examination. It was referred for enquiry by a one man enquiry commission whose report is produced as Ext.P3 and as per Ext.P2 the petitioner obtained a copy of the said report after applying under the Right to Information Act. It is pointed out that the result of the enquiry is in his favour as far as the allegations are concerned. But the enquiry commission made a wrong finding stating that the petitioner brought his calculator in violation of the rules of the University. He was not permitted to write the next examinations which were to be held on 19.6.2008 and 23.6.2008. He had filed W.P.(C) No.18342/2009 seeking for appropriate directions in the matter, wherein an interim order was granted as per Ext.P4, allowing him to write the examination provisionally and accordingly he had appeared for the above two examinations. In the third semester examination held on 7.11.2008 also, he was not permitted to write the same which compelled him to file W.P.(C) No.32271/2008 and as per Ext.P5 interim order, he was permitted to write the examination. wpc 3831/2010 3 4. Ext.P6 is a show cause notice issued by the Controller of Examinations to debar him from appearing in any examination in the University before May 2009, to which he submitted Ext.P7 reply. But overruling it, Ext.P8 order has been passed. 5. Heard learned counsel for the petitioner Shri Elvin Peter and Shri T.A. Shaji, learned Standing Counsel for the University. 6. My attention was drawn to Chapter V of M.G. University Examination Manual, the relevant portions of which have been quoted in paragraphs 3 and 4 of the writ petition, to contend that a student is entitled to use a mathematical instrument for the examination and therefore the act of the petitioner in bringing the calculator cannot be said to be in violation of the rules as noted by the enquiry commission. It is pointed out that the definition of malpractice and the items mentioned in Ext.P1 shows that the following are malpractices: “i) Introduction of any material relevant to the examination inadvertently. ii) Introduction of any material relevant to the examination, willfully with the intention of copying and possession of the same.” 7. Herein, the material, if any, was not relevant for the purpose of the examination undertaken by the petitioner. There is no allegation that he had wpc 3831/2010 4 brought the material with intention of copying and to get any benefit also. It is evident from the report of the enquiry commission also that the allegations against him was found incorrect and therefore evidently no other conclusion is possible than to exonerate him from the charges. The crucial finding in Ext.P3 shows that the candidate has never used any of the instruments. It is submitted that the same clinches the issue as far as the petitioner is concerned. Therefore, it is submitted that Ext.P8, whereby a decision was taken to cancel the examination taken by the petitioner and to debar him from appearing for any examination before May, 2009 is unsupported by any material, is without any application of mind and hence cannot be supported in law. 8. Shri T.A. Shaji, learned Standing Counsel for the University relied upon item No.1 of Chapter 14(2) of the M.G. University Examination Manuel, produced as Ext.P1, to plead that the action of the petitioner comes within the term malpractice and therefore, going by the same, the punishment is to debar from appearing examination for 1 and 2 semesters. It is submitted that Statute 3 (xxi) of Chapter 6 of the M.G. University First Statutes also enables the University to take appropriate action, if any unfair means are used by a student in an examination or copy anything etc. are done. It is submitted that the action taken by the Syndicate is perfectly in wpc 3831/2010 5 accordance with the same. 9. Ext.P1 is the reproduction of Chapter 14 of the University Examination Manuel. Para 1 therein shows that “malpractices in the University examinations includes any act or acts by a candidate or by his/her agents performed with the intention of gaining undue advantage in the evaluation resorting to unfair means during the examination or afterwards”. Therefore, actually a malpractice should result in undue advantage to the candidate concerned and with an intention to gain such advantage. If unfair means is resorted to get such undue advantage, it will be a malpractice. Judged in the light of the above, it cannot be said that the petitioner has indulged in any malpractice. Bringing a calculator is permitted by Regulation 35 of Chapter 5. It provides that the use of mathematical instruments while answering the papers in Mathematics and Physical Science is however, allowed and such instruments will not be supplied by the University also. It also provides that instructions shall be given to invigilators to verify strictly and carefully the tables brought by the candidates and to satisfy themselves that there is no scribbling or any addition in them, which may directly or indirectly facilitate any kind of malpractice at the examination. 10. Herein, the respondents are relying upon item 1 of clause 2 of wpc 3831/2010 6 Ext.P1, viz. introduction of any material relevant to the examination inadvertently and the punishment shows debarring of one or two chances. As rightly pointed out by the learned counsel for the petitioner, what is described as malpractice is “introduction of any material relevant to the Examination, inadvertently.” There is no proof that the petitioner has brought any material relevant for the examination even inadvertently which is supported by the findings in Ext.P3 enquiry report which shows that the candidate has never used any of the inscriptions. Even as per the report of the invigilator recorded in Ext.P3, it reads that “on verification it was found that the inscriptions were not related or relevant to the subject, Basic Electrical Engineering. The written matter is not easily readable.” Therefore, going by the conclusions arrived at by the enquiry commission, as items 2 and 3, the petitioner has never used any of the inscriptions. It cannot be termed that the same will be a malpractice as referred to in clause 1 of Chapter 14. In the absence of any finding that the petitioner has resorted to unfair means for getting undue advantage in the valuation, there cannot be any punishment by way of debarring of one or two chances, coming within item 1 of clause 2. He has not introduced any material relevant to the examination, in the light of the finding that the inscription has nothing to do with the paper he has written, viz. Basic Electrical wpc 3831/2010 7 Engineering. 11. Then the further question to be considered is whether the reliance placed on Statute 3 (xxi) of Chapter 6 of M.G. University First Statutes, is correct. It applies only when a candidate is found guilty of using or attempting to use unfair means at an examination. As evident from the facts revealed above, the same is not evidently attracted as no such allegations are proved. The Syndicate is given power to cancel the examination in such cases and also debar the candidate from appearing in one or two examinations. What is emphasised in the counter affidavit is that the act of the petitioner will amount to a malpractice. As already found by me earlier, bringing of a calculator in the light of Regulation 35 of the Examination Manuel, cannot be a malpractice at all. Therefore, the punishment granted by the Syndicate as per Ext.P5 has no nexus with the items of punishment provided in Ext.P1 and Statute 3(xxi) of Chapter 6 of the Statutes. In the absence of proven misconduct or malpractice against the petitioner, such a punishment cannot be granted. The punishment should have nexus with the gravity of offence and cannot be one unrelated to the proven acts of the students. The violation pointed out as item 3 in Ext.P3 that the candidate brought his calculator with some inscriptions, cannot also be supported in the light of the findings therein that the wpc 3831/2010 8 candidate has never used any of the inscriptions. Even if it amounts to a technical violation of the Regulations, in the light of the explanation offered by the petitioner and the findings contained in the enquiry report, that cannot lead to a punishment like this. 12. Therefore, it is clear that the punishment has been imposed without any support of the relevant material and without any application of mind to the relevant facts and circumstances of the case and the findings in the enquiry report. 13. Hence, the writ petition is allowed. Ext.P8 is quashed and the findings in Ext.P3 as item 3 that the petitioner has violated the rules of the Examination is also unsupportable and is declared so. There will be a direction to the respondents to declare the result of B.Tech Mechanical Engineering Degree Examination 1st and 2nd semester which the petitioner had appeared as per Exts.P4 and P5 interim orders, within a period of three weeks from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/