IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRD DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 13202 of 2009 Between: Plaban Kumar Pahari S/o.Sri Ardhendu Sekhar Pahari Sep/Nursing Assistant) R/o.School of Nursing Military Hospital, Secunderabad ..... PETITIONER AND 1 The Director General -Medical Service (DGMS) Army HQ, Medical Branch, New Delhi 2 O i/c Records, AMC Centre & School, Lucknow,U.P 3 The Commandant, Military Hospital, Secunderabad 4 The Senior Registrar & OC Troops, Military Hospital Secunderabad 5 Principal Tutor, School of Nursing, Military Hospital Secunderabad 6 Capt Alka Thomoas,(NR -20888-P) Tutor School of Nursing, Military Hospital, Secunderabad .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction more particularly one in the nature of writ of mandamus declaring the action of the respondents in not allowing the petitioner to sit for the final examinations in the course of General Nursing & Midwifery here at Military Hospital, Secunderabad as arbitrary illegal, and contrary to the principles of natural justice Equity and Conscience besides also violative of Articles, 14&16 of the Constitution of India and consequently direct the respondents to continue the petitioner in the said medical course until is completion as otherwise the petitioner shall be put to irreparable loss for no fault of his and pass Counsel for the Petitioner : MR. B.SREE RAMA KRISHNA Counsel for the Respondents : MR.S.S.VARMA (ADDL CGSC) The Court made the following : THE HON’BLE Ms. JUSTICE G.ROHINI WRIT PETITION No.13202 OF 2009 ORDER : The petitioner herein joined the Army service as a Nursing Assistant on 15.1.2001. While in service, he appeared for the entrance test for admission into General Nursing and Midwifery Course conducted by the 1st respondent on 15.6.2008. Having selected in the entrance test, the petitioner joined the School of Nursing on 2.9.2008. It is not in dispute that on completion of the said course, the petitioner would be entitled to get direct promotion to the cadre of Junior Commissioned Officer (JCO) in the Army subject to availability of vacancies. The final examinations for the first year of General Nursing and Midwifery (GNM) course were scheduled to be conducted by the 1st respondent in the month of August, 2009. Prior to that the pre-final examinations were held from 25.5.2009 to 28.5.2009 by the School of Nursing. On the second day of pre-final examinations, the petitioner was alleged to have indulged in copying from a book. Stating that the petitioner had admitted the allegation and pleaded guilty, he was awarded 14 days pay fine under Section 63 of the Army Act, 1950 after following due process. The same was also entered in the petitioner’s pay book with due intimation to the 2nd respondent. Thereafter, while informing orally that he was also terminated from GNM Course, the 4th respondent did not allow him to attend the classes from 27.5.2009 onwards and he was placed on administration/RP duties. Aggrieved by the said action of the respondents, the present writ petition is filed seeking a declaration that the action of the respondents is arbitrary and illegal and a consequential direction to allow the petitioner to appear for the final examinations scheduled to be held from 10.8.2009. It is pleaded by the petitioner that the allegation that he had indulged in copying in the pre-final examination on 27.5.2009 was absolutely false and without any basis. While claiming that he was selected in the entrance test among 300 aspirants and he had also successfully completed the eligibility test scoring 70% of marks apart from securing 27th rank out of 90 students and 72% in the internal examinations, it is contended that the misconduct attributed to him was unwarranted and unjustified. It is further pleaded that there was no scope for any candidate to carry books inside the examination hall since all the students were thoroughly checked before entering the examination hall and moreover the book from which the petitioner was allegedly copying did not form part of his study material provided by the School of Nursing. It is also alleged that the 6th respondent who was the examiner/tutor was inimical towards him since he refused to attend some personal works on some occasions and therefore he was involved in the alleged misconduct. It is also the case of the petitioner that the pre-final examination has no relevancy for the purpose of ranking or performance so as to enable the students to qualify to appear for the final examinations and therefore there was no need for the petitioner or any other student to indulge in malpractices in pre-final examinations as alleged by the respondents. A counter-affidavit has been filed on behalf of the respondents 1 to 6 stating that since the petitioner had indulged in unfair means during pre-final examination and was awarded a punishment under Section 80 of the Army Act, 1950, he was declared not eligible for the final examination of General Nursing and Midwifery Course scheduled to be held in August, 2009. The plea of the petitioner that the pre-final examination is only a practice test and the performance in the said test will not be taken into consideration for promotion to the next year has been denied and it is explained that as per the rules and regulations laid down by the Director General, Armed Forces, Medical Services and the Director, Military Nursing Services, pre-final examination is a mandatory requirement. It is further stated that to declare a student eligible to appear for final examination he must pass the pre-final examination securing minimum 50 marks in each paper and the result shall be sent to the 1st respondent. Since the petitioner used unfair means in the pre-final examination, the petitioner was rightly declared not eligible for the final examination. The plea of the petitioner that two students of the same course were allowed to appear for the final examinations without writing the pre-final examinations held in May, 2009 has been specifically denied and it is stated that the said students who had proceeded on emergency leave on extreme compassionate grounds had appeared for the pre-final examinations after they returned from the leave. The allegations made against the 6th respondent – Invigilator – were denied and it is stated that at the relevant point of time there were two other Invigilators on duty and it was found that the petitioner was looking at the open book and copied exactly same lines from the book. So far as the termination of the petitioner from the course is concerned, it is explained that the termination is in accordance with para 21 (a) of the Instructions contained in Army Medical Corps Record Office Instruction No.15/2005. It is further explained that before terminating the petitioner from the course, disciplinary proceedings were conducted by the 4th respondent and a tentative charge-sheet was issued to the petitioner on 27.5.2009 under Section 63 of the Act. The petitioner had acknowledged the charge- sheet and in his summary trial he pleaded guilty to the charge. Accordingly, he was awarded punishment of 14 days pay fine under Section 80 of the Army Act, 1950. Subsequently the petitioner was withdrawn from the course as per para 21 (a) of the Instructions contained in Army Medical Corps Record Office Instruction No.15/2005. The said fact was informed to the petitioner on 27.5.2009 itself and from 27.5.2009 he discharged general duty till 8.7.2009 on which date he was allowed to attend the classes. In his Reply affidavit, it is stated by the petitioner that having allowed him to attend the classes from 8.7.2009 onwards, the respondents ought to have permitted him to appear for the final year examinations scheduled to be held from 10.8.2009. I have heard the learned counsel for both the parties. As per Section 63 of the Army Act, 1950, any person who is guilty of any act or omission which though not specified in the Act is prejudicial to good order and military discipline shall on conviction by Court Martial be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is mentioned in the Act. Section 80 of the Army Act, 1950, enumerated the punishments that can be awarded against the person other than the Officer, Junior Commissioned Officer and Warrant Officer who is charged with an offence under the Act which included fine upto 14 days pay in any one month. In the instant case, the petitioner was charge-sheeted for his alleged involvement in unfair means during pre-final examination. According to the respondents, the petitioner had pleaded guilty to the charge in the proceedings conducted before the Senior Registrar and Officer Commanding Troops (Commanding Officer), Military Hospital, Secunderabad, following the procedure prescribed under the Act and the Rules made thereunder. Accordingly, the petitioner was awarded punishment of 14 days pay fine under Section 80 of the Army Act, 1950. The petitioner did not dispute the said fact and admittedly as on today the said punishment has become final. Para 21 (a) of the Instructions contained in Army Medical Corps Record Office Instruction No.15/2005 which provides for disposal of students using unfair means in the exam runs as under : “21. Disposal of students using unfair means in the exam: (a) A student found using unfair means in the examination held by the training establishment will be withdrawn from the course immediately and disciplinary proceedings will be instituted against the individual under the Army Act Section 63 by the training establishment concerned and he will remain attached to the training establishment till the finalization of the disciplinary establishment to Army Medical Corps Records to issue disposal order of the candidate. Candidates withdrawn from the courses on the ground of using unfair means in exam will be withdrawn from the subject course permanently and will not be subsequently detailed on similar course.” A reading of the above provision shows that whenever a student is found using unfair means in the examination held by the training establishment, he is liable to be withdrawn from the course apart from disciplinary action contemplated under the Army Act, 1950. Hence, the contention of the petitioner that after awarding the punishment of 14 days pay fine under Section 80 of the Act, the respondents were not justified in withdrawing him from the course and that it would amount to double jeopardy is without any substance. However, it is vehemently contended by the learned counsel for the petitioner that the alleged involvement of the petitioner in unfair means during pre-final examinations is absolutely false and without any basis. Having regard to the admitted fact that the petitioner was already awarded punishment under Section 80 of the Army Act, 1950 for the said offence and the said punishment has become final, it is not open to the petitioner to contend at this stage that the allegation itself is false. For the aforesaid reasons, the interference by this Court is not warranted on any ground whatsoever. However, the counter-affidavit filed on behalf of the respondents shows that during the pendency of this writ petition the petitioner has been permitted to attend the course from 8.7.2009 notwithstanding the withdrawal ordered earlier on 27.5.2009. The circumstances under which such a decision has been taken by the respondents is not known and no material has been placed before this Court by either of the parties. In the circumstances, it is made clear that this order shall not preclude the respondents if they choose to reconsider the issue and allow the petitioner to continue the course and to appear for the final examinations scheduled from 10.8.2009 onwards. With the above observation, the Writ Petition is disposed of. No costs. ______________ G. ROHINI, J. Dt. 03.08.2009 Note:- CC by tomorrow. (B/O) gbs