WP(C) 525/2010 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. K.N. Choudhury, learned Senior Counsel appearing for the petitioners. Also heard Mr. J. Roy, learned counsel appearing for the respondent University. 2. The petitioners who were pursuing their Bachelor of Computer App lication (Hons.) Course (hereinafter referred to as the BCA) under the North Eas tern Hill University, Shillong (NEHU), are aggrieved by the decision taken by th e University Authorities to cancel the examination taken by them in the year 200 8 and to debar the examinees from appearing in any NEHU University Examinations for a period of 1 (one) year. It may be noted that the 5 petitioners in WP(C) No . 525/2010 had appeared in the 2nd Year and the 3 petitioners in WP(C) No. 524/2 010 had appeared in the 3rd Year of the BCA Examination held in March 2008 at th e examination centre at Shillong Engineering & Management College, Jorabat (resp ondent No.5), wherefrom the petitioners were pursuing their BCA course. 3. The petitioners learnt of the disciplinary action taken against them from the Notification dated 23rd/28th July 2008 (Annexure-2) issued by the Controller of Examinations, NEHU whereby the impugned decision was notified. 4. Since it was not clear from the impugned communication of the Co ntroller of Examinations as to the nature of the default of the examinees, the N otification dated 23rd/28th July, 2008 were challenged in an earlier round in WP (C) 5330/2008 and WP(C) 281(SH)/2008 respectively by the affected students. This Court by its judgment and order dated 3.12.2009 held that the NEHU Authorities should have indicated the exact nature of unfair means alleged to have been adop ted by the examinees since Clause 4(n) of the NEHU Ordinances contemplates vario us natures of unfair means. Having concluded thus, the Court directed the Univer sity to communicate to the candidates the type/nature of unfair means alleged to have been adopted by them, so as to facilitate them to make representation(s) a gainst the impugned action. The University Authorities were required to make the necessary communication within 1 (one) month for the students to submit their r epresentation(s) and for them to be considered by the NEHU Authorities. 5. In pursuant to the direction in those cases, the University thro ugh communication dated 11.12.2009 informed that they resorted to unfair means i n the paper Computer System Architecture for the examinees in WP(C) No. 525/20 10 and Internet and Web Technology for the examinees in WP(C) No. 524/2010, wh ere the concerned examiner(s) had observed that the answer scripts of the examin ees were copied word to word from the text book. In their representation(s), the petitioners took the stand that it was impossible to copy answers from text boo k when examinations are being conducted in presence of authorized invigilators a nd since no untoward incidents were reported from the examination centre by anyo ne, the presumption of adoption of unfair means drawn against the examinees was erroneous and such presumption could not have been made the basis for taking pen al action against the students. 6.1 On behalf of the writ petitioners it is contended by the learned Senior Counsel that when students are disqualified from appearing in future exa minations, under Clause 5(b) of the NEHU Ordinance, the affected candidates are required to be given reasonable opportunity of being heard and without such oppo rtunity, penal actions cannot be taken against any student on charge of adoption of unfair means in examination. 6.2 It is further contended that the allegation of copying from the text book is a presumption drawn on the basis of the report of the examiner(s) a nd the affected students ought to have been given a reasonable opportunity to re but the said presumption by furnishing the offending passage(s) in the answer sc ripts written by the examinees, so that an effective reply could be given by the examinees. 7.1 Supporting the decision of the University to cancel the examinat ion and temporarily debar the candidates from appearing in future examinations, Mr. J. Roy, learned counsel submits that it is important to preserve the sanctit y of the examination process and when it is revealed from the report of the exam iner(s) that answers have been copied verbatim from the text book, the Universit y was duty bound to take necessary penal action against the candidates who had a dopted unfair means. 7.2 The learned counsel also contends that the candidates were aware of the violation alleged against them as can be gathered from the contents of t he appeal filed by them. Accordingly Mr. Roy submits that specific charge were k nown and it is not a case where the examinees were denied of an opportunity to m ake an effective representation against the impugned action, because of non-ment ion of the specific charges. 8. It is seen from the communication of the Controller of Examinati ons of 23rd/28th July, 2008 that a decision was already taken to cancel the exam ination and to temporarily debar the students from appearing in any NEHU Univers ity examinations. At the time when the said decision was taken in July 2008, the affected students were not furnished with any reason for the said penal decisio n nor any opportunity was provided to them at that stage, to make any representa tion. 9. In view of the requirement of providing a reasonable opportunity of being heard as prescribed under Clause 5(b) of the NEHU Ordinance, disqualif ying students from appearing in future examinations could not have been ordered in my view, without providing a reasonable opportunity to the affected students. But it is seen that at the stage of impugned decision in July, 2008, the examin ees were neither informed about the nature of their default nor they were provid ed with any reasonable opportunity of being heard against the proposed penal act ion. Therefore the decision of the Controller of Examinations taken on 23rd/28th July, 2008 was in breach of the requirement of Clause 5(b) of the NEHU Ordinanc e. It is declared accordingly. 10. Even after the direction of this Court given on 3.12.2009 in the first round, the exact nature of charge against the students was not formally c ommunicated. More particularly, the examinees were not provided the answer scrip ts or the contents thereof to enable them to effectively answer to the specific nature of charge against them. 11. Although from the contents of the Appeal filed by some of the ca ndidates, it can be gathered that they might have been aware of the charge, cons idering the various categories of unfair means specified in Sub-Clause (n) of Cl ause 4 of the NEHU Ordinance, it was incumbent for the University Authorities in my opinion to have referred to the specific violation under Sub-Clause (n) of C lause 4. But since this was not specified in any of the communication addressed by the University, it is obvious that the examinees were denied of a fair opport unity to respond to the charge, more particularly when the charge was based on p resumption and the objective material i.e. answer scripts or the relevant extrac t thereof, were not made available to the affected students. 12. When the NEHU Ordinance specifically contemplates providing of a reasonable opportunity before disqualifying a student from appearing in any fut ure examination, the respondents could not have decided to debar the petitioners from appearing in any future examination, without affording any such reasonable opportunity to them as was prescribed under the NEHU Ordinances. 13. It is seen that although the result of the examination held in M arch 2008 for the 2nd Year and the 3rd Year BCA Examinations have been withheld, the petitioners have been permitted to appear in the next year’s examination on the basis of the interim order passed by this Court. 14. Having held that the action of the NEHU Authorities in taking pe nal action against the writ petitioners was not in accordance with the procedure prescribed by the NEHU Ordinance and a reasonable opportunity was denied to the affected students, the writ petitions stands allowed and the impugned Notificat ion dated 23rd/28th July 2008 and the consequential orders passed thereafter per taining to March 2008 BCA examination are set aside and quashed. The respondent University will accordingly to declare the withheld result of the BCA Examinatio n forthwith. 15. The 2 writ petition(s) stand allowed with the above direction wi thout any order on costs.