* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: February 26, 2007 + W.P.(C).No.6254/2006 PRASHANT VATS .... PETITIONER Through: Mr. Arvind Nigam, Advocate and Mr. Sanjeev Nigam, Advocate for the Petitioner. Versus UNIVERSITY OF DELHI & ANR .... RESPONDENTS Through: Mr. V.P.Singh Sr.Advocate with Mohinder J.S.Rupal, Advocate for the Respondent No.1. Ms.Latika Chaudhary, Advocate for the respondent No.2. CORAM: HON'BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may be YES allowed to see the judgment? 2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported YES in the Digest? Anil Kumar, J. 1. This order shall dispose of this writ petition against the order of the Delhi University canceling petitioner’s examination of CEE, 2005 and further debarring him for five years from appearance in the examinations of Delhi University w.e.f June, 2005. The petitioner had appeared in the WP (C) 6254 of 2006 Page 1 of 62 CEE, 2005 on 29th May, 2005 and the result was declared on 13th June, 2005 and he was given question series no.14. After following the procedure as contemplated under rules and regulations, petitioner’s examination for CEE, 2005 has been cancelled and he has been debarred for a period of five years for using unfair means in the examination. 2. Some relevant details of the petitioner regarding the year he qualified the Senior Secondary Examination, percentage of marks obtained by him in the senior secondary examination, percentage of marks in Physics, Chemistry and Mathematics, his roll number in CEE, 2005 examination, rank obtained by him in CEE, 2005; the question series which was given to him in CEE, 2005 examination and ranking of the petitioner in other competitive examinations to comprehend the disputes are as under: Prashant Vats Question Series : 14 Roll No. : 70044 Rank CEE, 2005 : 24 Rank AIEEE, 2005 : 1,01,125 Rank GGSIP, 2005 : 15,009 Year of passing School : 2005 Marks in School : PCM 204 (Math59, Physics36+29, Chem 52+28) Percentage of marks : 68% WP (C) 6254 of 2006 Page 2 of 62 Marks before EDC out of 120 marks in 30 questions: 33 3. The petitioner scored following marks and his ranking in CEE, 2005 was as under:- Name of the Candidate Marks Ranking Obtained in CEE,2005 Prashant Vats 528 24 4. The comparison of the answer book of the petitioner with the answer book of students, Rajat Parihar and Sandarbh Kapoor, who appeared in CEE, 2005 from different centres revealed unusual similarity. Rajat parihar and Sandarbh Kapoor were given series 14 and series 16 respectively and they had secured rank 20 and 25 respectively in CEE, 2005. On comparison and tabulation of their answers it was revealed that the questions which were answered incorrectly were almost the same and their incorrect options, as every question had four options, were also the same. It was pointed out that the questions in different series were the same and the only difference was in the arrangement of the questions i.e. same questions were shown at different serial numbers in different series. WP (C) 6254 of 2006 Page 3 of 62 The answers of questions which were found to be wrong of the petitioner and the students, Rajat Parihar and Sandarbh Kapoor were as under:- Question numbers whose Same Option Answers were incorrect (Answer) attempted 3 3 10 2 14 3 23 1 30 3 31 4 50 3 54 3 61 1 66 2 62 2 68 2 77 4 90 2 95 3 99 3 99 3 101 1 105 4 106 1 114 3 115 3 116 2 117 2 118 2 119 4 120 1 130 4 133 3 136 2 139 1 WP (C) 6254 of 2006 Page 4 of 62 148 2 150 4 153 3 162 4 5. Another striking similarity in the answer books of the petitioner and the above named students was that they did not attempt the same questions i.e. did not give answer to the same question which was question no. 163 in series 14 which was at serial no. 153 in QPB series 16. Besides this question, petitioner and Sandarbh Kapoor also did not answer a question which was at serial no.62 in series 14 and the same question was at serial no. 112 in QPB series 16. Petitioner also did not answer question number 170. 6. The dissimilarities in answers which has led to slight difference in the marks of the petitioner with the other two students and their different ranking are as follows. i. The petitioner did not answer question 170 whereas Rajat Parihar and Sandarbh Kapoor had answered said question which was at serial no. 160 in series 16 with option 4. ii. The petitioner and Rajat parihar wrongly attempted question no. 65 with option 1. Petitioner did not answer question no. 62 whereas Rajat Parihar had answered the same question with option 4. WP (C) 6254 of 2006 Page 5 of 62 iii. The petitioner marked options 4 and 1 for the question nos. 6 and 65 whereas Sandarbh Kapoor answered the same questions which were at serial no. 56 and 115 in QPB series 16 with options 1 and 4. These miniscule differences in their answers had led to the different scores and different ranks in CEE, 2005 examination. The petitioner secured a rank of 24 whereas Rajat Parihar and Sandarbh Kapoor secured a rank of 20 and 25 respectively. 7. A petition seeking cancellation of result of CEE on the ground that the question paper had leaked and rigging of paper of CEE, 2005 was filed and an order canceling the admission of 33 students, on the ground that they had adopted unfair and illegal means, was passed on 25th July, 2005. A complaint was made to CBI. In the complaint it was disclosed that number of candidates scoring ranks 13, 25, 36 & 56 were 5, 3, 2 & 11 in numbers who had scored exactly the same marks in physics, chemistry and mathematics. Aggrieved by the said order some students had filed an appeal before the division bench which was disposed of by order dated 23rd August, 2005 and CBI was directed to complete the investigation within six weeks. The name of the petitioner did not figure in WP (C) 6254 of 2006 Page 6 of 62 the list of fourteen candidates furnished by the CBI. The house of petitioner was however raided by CBI. 8. The University of Delhi had given show cause notice to the petitioner dated 6th October, 2005 which was replied by him. The University of Delhi, however, cancelled his examination by Memorandum dated 21st October, 2005 against which the petitioner filed a writ petition being WP (C) 20512 of 2005. The University of Delhi withdrew the show cause notice which was given and the memorandum canceling the examination and as such the writ petition being WP (C) 20512 of 2005 was disposed of by order dated 8.2.2006 and the liberty was given to the University of Delhi to issue fresh show cause notices. 9. Pursuant thereto another show cause notice dated 23rd February, 2006 was issued to the petitioner calling upon him to explain in writing why disciplinary action as contemplated under Ordinance X-A of the Delhi University be not taken and the petitioner was directed to appear before the Examination Disciplinary Committee (EDC). The petitioner appeared before the EDC where the petitioner was asked to solve a question paper containing 30 questions. Considering the show cause notice, reply given WP (C) 6254 of 2006 Page 7 of 62 and other factors including the answers to the 30 questions given during the hearing, a notice was given on 7th April, 2006 asking the petitioner to show cause as to why the result of the petitioner for CEE, 2005 be not cancelled and he be further debarred for five years. After considering the reply given by the petitioner, the University of Delhi has debarred the petitioner for a period of five years and has also cancelled his examination for CEE, 2005 by order dated 19th April, 2006 on the ground that the petitioner has used unfair means in the examinations. The order was based on the facts that the ranking of the petitioner in AIEEE, 2005 conducted by Central Board of secondary Education was 101125 and in GGSIP, 2005 conducted by Guru Gobind Singh Inderprastha University was 15009 whereas in CEE it was 24; petitioner scored only 33 marks out of 120 marks in 30 questions which were put to the petitioner; on the QPB same questions were ticked twice using pen and pencil both; 36 wrongly attempted questions of the petitioner were same as that of Rajat Parihar; there was bunching of result in series 14 around ranks 20-25; encoding in the OMR of the petitioner matches with Sandarbh Kapoor (series 16) and a major bunching was around rank 25-30 in series 16; different series were created by relative shift of the questions in a subject and key which belongs to series 14 were derived from key for series 16; encoding done WP (C) 6254 of 2006 Page 8 of 62 on the OMR sheet of Sandarbh Kapoor after shifting of questions in various subject matches to a large extent with the encoding on the OMR sheets of the petitioner; key for questions 1-180 found written in the QPB of Sandarbh Kapoor and the petitioner had erased written material on pages 8 and 9 of his QPB with the intention of hiding information though there was no necessity for erasing any information written on QPB. 10. The show cause notice dated 23rd February, 2006 was issued to the petitioner stipulated the earlier orders passed by the High Court and superseding the earlier show cause notice and memorandum dated 21st October, 2005. It also mentioned about the scrutiny done on the basis of a complaint which revealed the bunching of results/ranks and about the questions which were left unattempted or the questions which were wrongly answered tallied almost completely which made the University to believe that certain malpractices were adopted in the course of the examination CEE, 2005. It also stipulated the names of the candidates in respect of whom bunching was noticed. In the show cause notice to the petitioner, it was categorically stated that the copies of OMR sheets of all these candidates were supplied to him. The copies of expert reports were also given to the petitioner. It was also mentioned that the phone bearing WP (C) 6254 of 2006 Page 9 of 62 numbers 9872899095 and 9899214819 were recovered by the invigilators from Mr.Anshul Aggarwal( Roll No.16628) and Mr. Saumya Agarwal (Roll No.68059). Mr. Anshul Aggarwal had confessed that the last SMS received on his mobile phone was `03244312241310" which was the answer from second numeral to last but one, of questions number 168 to 179. The OMR answer sheet is printed in blocks of five rows, each row corresponding to one question and each row has four ovals marked 1 to 4. The numbers in the ovals refer to the options for each question as set out in QPB. Any key to answers to these questions would consist of five digit numbers having numerals from 1 to 4. It was stated that the said incident of recovery of mobile phones and communication of messages in digital form had created doubts that unfair means were used in CEE, 2005. In Para 6 of the notice given to the petitioner the result of scrutiny of QPB and OMR answer sheets of the petitioner was given. The petitioner had given reply to the notice issued to him. Para 6 of the show cause notices given to the petitioner and his reply dated 28.2.2006 are as under: PRASHANT VATS - W.P.(C).NO.6254/2006 WP (C) 6254 of 2006 Page 10 of 62 6. In course of this detailed scrutiny, your QPB and OMR answer sheet was also taken up. You had secured a common rank of 24. The scrutiny revealed as under: 6. That it is not understood why my results were scrutinized in detail since it is the stand of the University that it was the results of the candidates detailed in paragraph 3 alone whose results were scrutinized in detail. The contents of the paragraph under reply are accordingly contradictory to the assertion of the University in paragraph 5 of the said Show Cause Notice. It is, however, a matter of record that I secured rank 24 at the said examination. It is further stated that the assertions of the University in the paragraph under reply are contrary to the earlier Show Cause Notice dated 6.10.2005, the Memorandum dated 21.10.2005 as also the Counter Affidavit filed to Writ Petition (Civil) No.20512 of 2005 are at variance with each other and also contrary to the allegations sought to be leveled in the Show Cause Notice under reply. I crave leave to refer to and rely upon the said documents in this behalf at an appropriate stage if found necessary. WP (C) 6254 of 2006 Page 11 of 62 (i) The QPB in respect of Q.Nos.36, 37, 39, 40, 43, 44, 45, 46, 48, 49, 50, 51, 56, 57, 59, 60, 61, 63, 64, 67, 68, 69, 70, 77, 80, 81, 82, 89, 92, 94, 99, 120, 124, 128, 138, 144, 147, 148, 149, 150, 152, 153, 156, 157 and 168, you have ticked two options. However, only one out of two options ticked has been encoded in the OMR sheet. (i) That the allegation that in respect of a few questions I have ticked two options on the QPB, however, only one of the said answers has been encoded in the OMR answer sheet. This may be a fact that is borne out from the record however it is not understood how the said fact is material to allege use of unfair means by me and more particularly by way of receiving SMS messages on a mobile phone. It is further not understood how the manner and mode of answering his questions devised by me for the said examination has been interpreted by the University to mean that I have used unfair means at the said examination. Moreover it is very common for a candidate to initially mark certain option as a probable answer and subsequently arrive at a different conclusion and give a different answer in the answer sheet. I am in the habit of marking preliminary answers with regard to questions of which I was not sure and had initially left those questions and after attempting/answering the questions of which I was relatively sure, I devoted time and come to the correct answers or the answers which appeared to me to be correct. In any event I have encoded only one option on the OMR answer sheet which is what a candidate is required to do. The purport of the allegation sought to be leveled is not understood in this behalf. WP (C) 6254 of 2006 Page 12 of 62 (ii) As per subject experts, the nature of the questions asked was such that in majority of cases some rough work was required, particularly in Physics and Mathematics (Encl.1). However, you have done little rough work, the scribbling against Q.Nos.61, 62, 63, 122, 128, 130, 131, 135, 138, 139, 140, 144, 147, 148, 152, 153, 155, 156, 157 and 168 and some calculations done against Q.Nos.34, 35, 36, 37, 38, 39, 42, 43, 47 are inconclusive. (ii) That the contents of the paragraph under reply are baseless apart from being inconsistent with the earlier stand of the University in this behalf. It is submitted that fact that there was absence of rough work in solving the alleged difficult questions even otherwise does not indicate anything suspicious. It is stated that I had done rough work for my reference as per my requirement. It would be relevant to point out that in objective type paper where 180 questions are to be answered in 180 minutes, speed and time management is the key to success. Accordingly, like various other candidates in view of the four optional answers I too used the “process of elimination” whereby the obvious incorrect answers were eliminated and rough work was done for that purpose and by the same process the answer was sought to be given to the said question. In this process, it was not found necessary that with respect to all questions a detailed rough work be carried out. Even otherwise, neither the examination rules nor the authorities require a candidate to show detailed step-wise calculation to show the manner of arriving at the answer. Furthermore it has not been disclosed who the so called experts are who have given their opinion to the University. The same has in any event not been made available to me. The same is accordingly violative of the principles of natural justice. It seems improbable that even an expert would be able to answer all 180 questions within the time stipulated after detailing all the steps and calculations required to arrive at the correct answer. It is a matter of WP (C) 6254 of 2006 Page 13 of 62 (iii) The serial numbers of thirty six (36) wrongly attempted questions as well as the options encoded therein match exactly with that of the candidate having Roll No.61962 who appeared for the CEE-2005 at a different centre and was given booklets belonging to the same series as yours. As opined by the expert, this kind of similarity is not possible without employing some unfair means. (iii) That the contents of the paragraph under reply further indicate that the University has proceeded on conjunctures and surmises. It is evidenced from a reading of the contents of paragraph 6 (iii) that there is no direct evidence available with the University against me and that the University has proceeded to issue the captioned Show Cause Notice to me on the basis of probability and which is not based on any cogent reasoning or material. The alleged similarity between my result and that of 1 other candidate who allegedly took the said examination at various other centers with regard to unattempted and wrongly attempted questions is not at all a striking feature that ought to be held against me to level a serious allegation of having used unfair means at the said examination. Admittedly more than 55,000 students took the said examination and my result allegedly bearing some similarity with 1 other candidate is a probability that not highly improbable. Moreover the said similarity allegedly pertaining to 36 unattempted questions out of a question paper carrying 180 questions too is not a striking feature which could be held against me to indite me for having used unfair means at the said examination. Moreover the report of any alleged expert obtained by the University and held against me to allege that I have used unfair means at the said examination has not been made available to me. This is clearly violative of the principles of natural justice and the said opinion of the alleged experts ought not to be held against me in the absence of the same having been furnished to me. The University WP (C) 6254 of 2006 Page 14 of 62 (iv) Some hand written material on pages 8 and 9 of the QPB has been erased with the intention of hiding some information although lot of other written material on these pages has been left untouched. (iv) That the contents of the paragraph under reply are contradictory to the assertions of the University in the preceding paragraphs. The University on the one hand seeks to allege that no rough work has been done by me whereas on the other hand markings made by me are sought to be deciphered to my detriment by the University to be something surreptitious is not only unfair but also unacceptable. The allegation is entirely unsubstantiated and does not in any manner connect me with the use of any unfair means at the said examination. (v) You had marked in the QPB answers to some questions in pencil. After clandestinely receiving assistance in course of the CEE-2005, you had marked the right options in pen which tally with the options encoded in the OMR sheet. (v) That the contents of paragraph 6(v) are entirely baseless and based on conjunctures and surmises. There is some pattern allegedly deciphered by the University that is sought to connect me to the said candidate which is unknown to me and not explained by the University. The allegation sought to be made against me is entirely speculative. The University does not even allege that I was carrying a mobile phone to the examination but alleges that I clandestinely received assistance during the course of the said examination is vague and discloses complete non application of mind. It is not understood how this could be possible. The University too does not attempt to decipher this. The contents of the paragraph under reply are baseless and conclusive of my innocence. 11. The respondents considered the show cause notice, reply to show cause notice, hearing given to the petitioner, performance of the petitioner WP (C) 6254 of 2006 Page 15 of 62 in 30 questions given to the petitioner during hearing, performance of the petitioner in other competitive examinations, percentage of the petitioner in qualifying examination and his percentage in PCM in qualifying examination and the opinions of the experts, his QPB and OMR sheets. The respondent nos. 2 & 3 passed the order dated 19th April, 2006 and stipulated that they considered the matter in detail on the basis of the findings of Examination Disciplinary Committee, available records, candidate's submission in writing and in oral and the reply to the show cause notice and the reply to the notice proposing punishment against him. The petitioner was found guilty of use of unfair means in CEE, 2005 held on 29th May, 2005 and issued the memorandum dated 19th April 2006 under the provision contained in Clause 13 read with Clause 9 of Ordinance X-A of the University. 12. The petitioner has impugned this order in the writ petition. The learned counsel for petitioner has argued at length pointing out the differences in the show cause notice given to the petitioner at different times. In the first show cause notice dated 6th October 2005 it was contended that the petitioner carried the mobile phones with the dishonest intention of misusing it and received SMS messages during the CEE, WP (C) 6254 of 2006 Page 16 of 62 2005 and the petitioner contact with Pankaj Dahiya/Himanshu Sharma/Lalit Hooda for the use of unfair means had been established which was also confirmed by the disclosure statements of these persons. The emphasis was also laid in variations in show cause notices and the complaint filed with Central Bureau of Investigation and the grounds on which the earlier memorandum dated 21st October 2005 was challenged. 13. The earlier show cause notice had been withdrawn and also the memorandum by which punishment was inflicted. While withdrawing the earlier show cause notice, the liberty was granted to the respondents to issue fresh show cause notice and consequently fresh show cause notice dated 23rd February, 2006 was issued to the petitioner. When the liberty was granted to the respondents to issue fresh show cause notice, there was no restriction from issuing the fresh show cause notice on the same grounds as were taken by the respondents in the earlier show cause notice. The petitioner had also not challenged the order granting liberty to the respondents to issue fresh show cause notice. Consequently some variation in the earlier show cause notice and the show cause notice dated 23rd February, 2006 will not be very material to impugn the order passed pursuant to subsequent show cause notice given by the respondents. WP (C) 6254 of 2006 Page 17 of 62 14.