IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 WP(C).No. 11213 of 2010(B) ---------------------------------------- PETITIONER(S): ------------------------- GAUTAM KUMAR JHA, 4TH SEMESTER B.TECH (IT) STUDENT, ADI SHANKARA INSTITUTE OF ENGINEERING & TECHNOLOGY, KALADY, ERNAKULAM DISTRICT. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): ---------------------------- 1. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, ATHIRAMPUZHA, KOTTAYAM. 2. THE REGISTRAR, MAHATMA GANDHI UNIVERSITY, ATHIRAMPUZHA,KOTTAYAM. 3. THE CONTROLLER OF EXAMINATIONS, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 4. THE PRINCIPAL, ADI SHANKARA INSTITUTE OF ENGINEERING & TECHNOLOGY, KALADY, ERNAKULAM DISTRICT. R1 TO R3 BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY R4 BY SRI. B.S.KRISHNAN, SENIOR ADVOCATE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11213/2010 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ENQUIRY REPORT DTD. 28/12/2009 SUBMITTED BY THE ENQUIRY OFFICER. P2: COPY OF THE SHOW CAUSE NOTICE DTD. 6/02/2010 ISSUED BY THE 3RD RESPONDENT. P3: COPY OF THE REPLY DTD. 19/02/2010 SUBMITTED BY THE PETITIONER. P4: COPY OF THE ENQUIRY REPORT DTD. 18/06/2008 SUBMITTED BY THE ENQUIRY OFFICER IN THE CASE OF MR. AMBAREESH. P5: COPY OF THE ORDER DTD. 15/01/2010 ISSUED BY THE MAHATMA GANDHI UNIVERSITY. P6: COPY OF CHAPTER 14 OF THE EXAMINATION MANUAL. P7: COPY OF THE JUDGMENT DTD. 22/03/2010 IN WP(C) NO.3831/2010 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.11213 Of 2010 ----------------------------------------------------- DATED THIS THE 20th DAY OF OCTOBER, 2010 J U D G M E N T The petitioner herein seeks to quash Exhibit P2 proceedings of the University. A consequential direction is sought to allow the petitioner to appear for the 4th Semester B.Tech Degree IT Engineering Course. 2. The petitioner is studying in the 4th respondent- College. The 3rd Semester examination was commenced on 9.11.2009 and he attended the examination for Engineering Mathematics-II paper on 9.11.2009. On that day, Invigilator recovered the calculator that was being used by the petitioner and on verification it was found that on the lid of the calculator there were some inscriptions made using pencil. According to the petitioner, he was unaware of the same. The calculator was borrowed by some of the senior students and he denied any involvement in respect of the inscriptions made by pencil. But the Invigilator, after recovering the calculator sent the petitioner out of the examination hall and thereafter he was not allowed to continue the examination. He was also prevented from appearing W.P.(C)No.11213/10 -2- for the subsequent examinations for the 3rd Semester. 3. This Writ Petition was filed when the 4th Semester examination was expected to be held in the last week of April, 2010. In the meanwhile, an enquiry was conducted into the alleged malpractice of the petitioner and Exhibit P1 is the copy of the enquiry report. It was concluded by the Enquiry Officer that the writing on the calculator is not connected with the examination Mathematics-II. On enquiry with the experts, they said that the writings is connected with the 'C' programming. The Enquiry Officer recommended that the petitioner may be permitted to write the next examination by cancelling the whole of the examination as a punishment. Exhibit P2 is the show cause notice which was issued later, to which the petitioner submitted Exhibit P3 reply. The petitioner relies upon Chapter 14 of the Examination Manual, a true copy of which has been produced as Exhibit P6. It is contended that even in the light of the Examination Manual, it is clear that the students appearing for the B.Tech Engineering Courses are entitled to carry a calculator and the same is permitted. Paragraph No.35 of the Manual provides that there shall not be any scribbling on the W.P.(C)No.11213/10 -3- calculator directly or indirectly to facilitate any kind of malpractice in the examination. Going by Chapter 14, the malpractice will be one if any material relevant to the examination is introduced. Accordingly, it is contended that the action cannot be supported. 4. Heard the learned Standing Counsel for the University and the learned Standing Counsel for the College. 5. Identical question was considered in W.P.(C) No.3831/2010, a copy of which has been produced as Exhibit P7. Paragraphs 10 and 11 of the said judgment are reproduced below. 10. Herein, the respondents are relying upon item 1 of clause 2 of 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 W.P.(C)No.11213/10 -4- 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 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 W.P.(C)No.11213/10 -5- 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 W.P.(C)No.11213/10 -6- 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. Since the position herein is the same, the said finding applies to the facts of this case also. 6. In that view of the matter, the reason shown in the show cause notice may not be supportable. Therefore, there will be a direction to the University to pass an appropriate order in the light of the findings rendered in Exhibit P7 judgment which are applicable to the facts of this case also, within a period of six weeks from the date of receipt of a copy of this judgment. The result of the examination attended to by the petitioner will be published depending upon the order to be passed by the University. The Writ Petition is disposed of as above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn